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The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



EXECUTIVE ORDER 



IN ADDITION 

Voting Rights Act 

Wildlife Resources Commission Proclamation 



PROPOSED RULES 
Agriculture 

Cosmetic Art Examiners 
Dental Examiners 
Human Resources 
Insurance 
Justice 
Labor 

Medical Examiners 
Mortuary Science 

Professional Engineers and Land Surveyors 
Transportation 



RRC OBJECTIONS 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



ISSUE DATE: February 15, 1994 
Volume 8 • Issue 22 • Pages 2119-2213 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Mofly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 

This publication is printed on permanent, 
acid-free paper in compliance with 
G.S. 125-11.13. 



ISSUE CONTENTS 



I. EXECUTIVE ORDER 

Executive Order 37 2119 

II. IN ADDITION 

Voting Rights Act 2121 

Wildlife Resources Commission 
Proclamation 2123 

III. PROPOSED RULES 
Agriculture 

Aquaculture 2126 

Markets 2125 

Markets 2127 

Plant Industry 2125 

Plant Industry 2141 

Standards Division 2124 

Human Resources 
Departmental Rules 2143 

Insurance 
Financial Evaluation Division . . . 2145 
Property and Casualty Division . . 2144 

Justice 
Private Protective Services 2151 

Labor 
OSHA 2154 

Licensing Boards 

Cosmetic Art Examiners 2162 

Dental Examiners 2166 

Medical Examiners 2167 

Mortuary Science 2170 

Professional Engineers and 
Land Surveyors 2172 

Transportation 
Highways, Division of 2158 

IV. RRC OBJECTIONS 2179 

V. RULES INVALIDATED BY 

JUDICIAL DECISION 2187 

VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 2188 

Text of Selected Decisions 
93 ABC 0861 2198 

VII. CUMULATIVE INDEX 2210 



NORTH CAROLINA REGISTER 

Publication Schedule 

(July 1993 - May 1994) 



Volume 
and 

Issue 
Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

to RRC 


** Earliest 

Effective 

Date 


8:7 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


08/02/93 


08/20/93 


10/01/93 


8:8 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/16/93 


08/20/93 


10/01/93 


8:9 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


8:10 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


8:11 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


8:12 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


8:13 


10/01/93 


09/10/93 


09/17/93 


10/18/93 


11/01/93 


11/22/93 


01/01/94 


8:14 


10/15/93 


09/24/93 


10/01/93 


11/01/93 


11/15/93 


11/22/93 


01/01/94 


8:15 


11/01/93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


8:16 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


8:17 


12/01/93 


11/05/93 


11/15/93 


12/16/93 


01/03/94 


01/20/94 


03/01/94 


8:18 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 


8:19 


01/03/94 


12/08/93 


12/15/93 


01/18/94 


02/02/94 


02/21/94 


04/01/94 


8:20 


01/14/94 


12/21/93 


12/30/93 


01/31/94 


02/14/94 


02/21/94 


04/01/94 


8:21 


02/01/94 


01/10/94 


01/18/94 


02/16/94 


03/03/94 


03/21/94 


05/01/94 


8:22 


02/15/94 


01/25/94 


02/10/94 


03/02/94 


03/17/94 


03/21/94 


05/01/94 


8:23 


03/01/94 


02/08/94 


02/15/94 


03/16/94 


03/31/94 


04/20/94 


06/01/94 


8:24 


03/15/94 


02/22/94 


03/10/94 


03/30/94 


04/14/94 


04/20/94 


06/01/94 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 



Note: Tune is computed according to the Rules of Civil Procedure, Rule 6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-2 1.2(f) for adoption procedures. 

** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Re\iew Commission approves the tide at the next calendar month meeting after submission, ami 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Rexised 07/93 



EXECUTIVE ORDER 



EXECUTIVE ORDER NO. 37 
CITIZEN ACCESS TO PUBLIC RECORDS 
MAINTAINED BY STATE GOVERNMENT 

WHEREAS, the State of North Carolina has one 
of the country's best laws on citizen access to 
public information; and 

WHEREAS, a general climate of openness has 
protected North Carolina citizens from widespread 
scandal; and 

WHEREAS, such a climate of openness led 
former Treasurer Edwin Gill to declare that, "In 
North Carolina, good government is a habit"; and 

WHEREAS, technological advances give citizens 
access and the ability to analyze large volumes of 
public information, participating in their govern- 
ment in ways inconceivable just a decade ago; and 

WHEREAS, virtually all state government 
information and records now are maintained on 
electronic, computerized data bases; 

NOW, THEREFORE, by the authority vested in 
me as Governor by the Constitution and laws of 
North Carolina, IT IS ORDERED: 

Section L Purpose. 

That all state agencies shall have a clear under- 
standing that state law carries a strong presumption 
that public information belongs to the public; that 
citizens have access to that information in any 
medium in which the agency is capable of provid- 
ing it; and that such information should be made 
available at the actual cost of reproduction. 

Section 2. A pplicability. 

This Executive Order, shall apply to the Depart- 
ment of Administration and the Department of 
Transportation, hereinafter "the agencies." At the 
end of nine months, this Order may be extended to 
include other agencies in the Executive Branch, 
after evaluation of implementation costs by the 
Information Resource Management Commission. 
The agencies shall keep records of the names and 
addresses of persons requesting information and of 
the costs, including the time spent by state employ- 
ees in complying with this Order. 

Section 3. Responsibilities. 

(a) In order to facilitate public access to and 
copying of public information maintained in 
electronic form, a register of information within 



the agencies shall be developed within one year of 
the issuance of this executive order. The register 
shall contain, at a minimum, names of the data 
bases and each of their fields; a description of each 
record series; information as to the frequency with 
which the data base is updated; a list of any data 
fields to which public access is restricted; a de- 
scription of each form in which the data base can 
be copied or reproduced using the state agency's 
existing computer programs or the agency's custo- 
dian of public information; and a schedule of fees 
collectible for the production of copies in each 
form. 

The register shall be written in language de- 
signed to be comprehensible to persons lacking 
detailed knowledge of computer language or 
formats. The form, content, and language of such 
a register shall be as prescribed by the Information 
Resource Management Commission, with the 
advice of the Division of Archives and History. 

Until such time as the register is developed, the 
agencies shall be responsible for creating an initial, 
annotated list of all public electronic information 
that the agency is required to maintain by law. 
The annotated list also must include a schedule of 
fees collectible for the production of copies of 
public information in each form. The form and 
content of the annotated list shall be determined by 
the Information Resource Management Commis- 
sion, with the advice of the Division of Archives 
and History. The agencies must complete their 
annotated lists within three months of the issuance 
of this Executive Order. 

(b) No request to inspect, examine, or obtain 
copies of public information shall be denied on the 
grounds that confidential information is commin- 
gled with the requested non-confidential informa- 
tion. If it is necessary to separate confidential 
from non-confidential information in order to 
permit the inspection, examination, or copying of 
public information, the state agency shall bear the 
cost of such separation. 

(c) Computer hardware or software purchased 
by the agency after the effective date of this 
Executive Order should be capable of easily 
separating confidential information maintained on 
the same data base. 

Section 4. Access and Fees. 



(a) Persons requesting copies of public informa- 
tion may elect to obtain them in any media which 
the agency currently has available. No request for 
copies of public information in a particular medi- 
um shall be denied on the grounds that the custodi- 
an has made or prefers to make the public infor- 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2119 



EXECUTIVE ORDER 



mation available in another medium. The agency 
is not required to change the medium of an exist- 
ing public record in order to fulfill a request. The 
agency is not required to maintain obsolete hard- 
ware or software merely because a person prefers 
to obtain public information in the format pro- 
duced by obsolete hardware or software. 

(b) Persons requesting printed copies of public 
information may request that the copies be certi- 
fied. The fees for certifying copies of public 
information shall be as provided by law. 

Except as otherwise provided by law, the agen- 
cies shall not charge a fee for an uncertified copy 
of public information that exceeds the actual cost 
to the state agency making the copy. "Actual 
cost" may include the cost of the materials and 
supplies needed to duplicate the information, but 
may not include labor costs or agency overhead. 
However, a special service charge may be added 
to the actual cost of duplication if the request 
requires extensive use of information technology 
resources or extensive clerical assistance. The 
term "extensive use of technology resources" and 
"extensive clerical assistance" are meant to reflect 
only extraordinary costs. The special service 
charge must be reasonable, and must reflect only 
the cost incurred for the use of extensive informa- 
tion technology resources or the cost actually 
incurred by the agency or attributable to the 
agency for clerical assistance required to fulfill the 
request. 

(c) If anyone requesting public information from 
any state agency is charged a fee that the requestor 
believes to be unfair or unreasonable, the requestor 
may ask the Information Resource Management 
Commission to mediate the dispute. 

Section 5. Effect of Other Executive Orders. 

All other Executive Orders or portions of Execu- 
tive Orders inconsistent herewith are hereby 
rescinded. 

This Executive Order shall be effective immedi- 
ately, and shall expire in nine months, unless 
extended by further Executive Order. 

Done in the Capital City of Raleigh, North 
Carolina, this the 28th day of January, 1994. 



2120 8:22 NORTH CAROLINA REGISTER February 15, 1994 



IN ADDITION 



1 his Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



U.S. Department of Justice 

Civil Rights Division 

JPT:GS:FHD:emr Voting Section 

DJ 166-012-3 P.O. Box 66128 

93-4297 Washington, DC. 20035-6128 

93-4722 



January 7, 1994 

Richard J. Rose, Esq. 

Poyner & Spruill 

P. O. Box 353 

Rocky Mount, North Carolina 27802 

Dear Mr. Rose: 

This refers to four annexations [Ordinance Nos. 0-93-44, 0-93-45, 0-93-53, and 0-93-67 (1993)] and 
the designation of the annexed areas to single-member districts of the City of Rocky Mount in Edgecombe and 
Nash Counties, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights 
Act of 1965, as amended, 42 U.S.C. 1973c. We received your submissions on November 9 and December 
17, 1993. 

The Attorney General does not interpose any objection to the specified changes. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the changes. In addition, as authorized by Section 5, we reserve the 
right to reexamine these submissions if additional information that would otherwise require an objection comes 
to our attention during the remainder of the sixty-day review period. See the Procedures for the 
Administration of Section 5 (28 C.F.R. 51.41 and 51.43). 



Sincerely, 

James P. Turner 

Acting Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



8:22 NORTH CAROLINA REGISTER February 15, 1994 2121 



IN ADDITION 



U.S. Department of Justice 

Civil Rights Division 

JPT:MAP:DBM:tlb Voting Section 

DJ 166-012-3 P.O. Box 66128 

93-2679 Washington, DC. 20035-6128 

93-2680 

93-3720 



January 10, 1994 

Michael Crowell, Esq. 
Tharrington, Smith & Hargrove 
P. O. Box 1151 
Raleigh, North Carolina 27602 

Dear Mr. Crowell: 

This refers to the following voting changes for the board of commissioners and the board of education 
in Perquimans County, North Carolina, submitted to the Attorney General pursuant to Section 5, as amended, 
42 U.S.C. 1973c: 

1. The 1966 reduction in the number of residency districts for election of county commissioners; 

2. Chapter 96 (1993), which provides for an increase in the number of county commissioners from five 
to six, the elimination of residency districts, the method of staggering terms (three-three), the adoption of 
limited voting, a plurality-win provision in primary elections, and the implementation schedule (including the 
appointment of an interim commissioner); and 

3. Chapter 21 (1993), which provides for an increase in the number of school board members from five 
to six, the elimination of residency districts, the method of staggering terms (three-three), the adoption of 
limited voting, and the implementation schedule (including the appointment of an interim board member). 

We received your responses to our request for additional information regarding the changes occasioned by 
Chapters 96 and 21, on November 10 and December 7, 1993. We received your submission of the 1966 
change in residency districts on December 7, 1993. 

The Attorney General does not interpose any objection to the specified changes. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the changes. See the Procedures for the Administration of Section 5 
(28 C.F.R. 51.41). 



Sincerely, 

James P. Turner 

Acting Assistant Attorney General 
Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



2122 8:22 NORTH CAROLINA REGISTER February 15, 1994 



IN ADDITION 



> 



NORTH CAROLINA WILDLIFE RESOURCES COMMISSION 

512 N. Salisbury Street, Raleigh, North Carolina 27604-1188, 919-733-3391 
Charles R. Fullwood, Executive Director 



PROCLAMATION 



> 



Charles R. Fullwood, Executive Director, North Carolina Wildlife Resources Commission, acting 
pursuant to North Carolina General Statute §113-292(cl) and authority duly delegated by the Wildlife 
Resources Commission, hereby declares that the season for harvesting striped bass by hook-and-line shall 
remain closed in all waters of the Roanoke River Striped Bass Management Area until 12:01 a.m. 19 February 
1994. 

Effective 19 February 1994 striped bass may be harvested from 12:01 a.m. on Saturdays through 
12:00 midnight on Sundays, and from 12:01 a.m. through 12:00 midnight on Wednesdays. On all other days 
all striped bass caught, regardless of condition, shall be immediately returned to the waters where taken and 
no striped bass may be possessed. 

The Roanoke River Striped Bass Management Area is defined as the inland and joint fishing waters 
of the Roanoke River and its tributaries, extending from its mouth to Roanoke Rapids Dam, including the 
Cashie, Middle, and Eastmost rivers and their tributaries. 

This Proclamation shall be effective at 12:01 a.m. 24 January 1994 and shall remain in effect until 
a new proclamation closing described waters or portions thereof for striped bass fishing is issued. 

This proclamation supersedes and replaces all prior proclamations. 

NOTES: 

a) This Proclamation is issued under the authority of N.C.G.S. §§113-132; 113-134; 113-292; 

113-304; and 113-305. 



b) All striped bass regardless of condition taken subsequent to the effective date and time of this 
Proclamation shall be immediately returned to the waters where taken and no striped bass 
may be possessed. 

c) Any person who violates this Proclamation also violates applicable law and is subject to the 
sanctions provided by law. 



by: Charles R. Fullwood 

Executive Director 



Date: 1/21/94 



> 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2123 



PROPOSED RULES 



TITLE 2 - DEPARTMENT 
OF AGRICULTURE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Board of Agriculture 
intends to amend rules cited as 2 NCAC 38 .0401; 
43L .0202; 48A .1702 - .1703; 48B .0119; and 
adopt rule cited as 2 NCAC 53 .0001. 

1 he proposed effective date of this action is June 
1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on March 24. 1994 at the Gov. James B. 
Hunt Jr. Horse Complex (Restaurant), 4601 Trinity 
Rd. , Raleigh, NC 27607 

IXeason for Proposed Action: 

2 NCAC 38 .0401 - To provide for disclosure of 
price for filling propane containers. 

2 NCAC 43L .0202 - To increase rates to meet 

increased operating expenses. 

2 NCAC 48A .1702 - To include other non-native 

Lythrum species in addition to Purple Loosestrife. 

2 NCAC 48A .1703 - To add counties where 

certain noxious weeds have been found and to 

update reference to Lythrum species. 

2 NCAC 48B .0119 - To clarify requirements. 

2 NCAC 53 .0001 - To provide for licensing of 

aquaculture facilities. 

Lsomment Procedures: Interested persons may 
present their statements either orally or in writing 
at the public hearing or in writing prior to the 
hearing by mail addressed to David S. McLeod, 
Secretary of the North Carolina Board of Agricul- 
ture, P.O. Box 27647, Raleigh, NC 27611. 

CHAPTER 38 - STANDARDS DIVISION 

SECTION .0400 - METHOD OF SALE OF 
COMMODITIES 

.0401 ADOPTION BY REFERENCE 

The Board hereby adopts by reference in accor- 
dance with G.S. 150B- 14(c) the National Institute 
of Standards and Technology, Handbook 130, 
"Method of Sale of Commodities Regulation" with 
the following additions and exceptions: 

(1) Delete Section 1.2., "Bread", since this 
is addressed in G e neral Statut e G.S. 8 1 A-41 . 

(2) The preferred method for measuring 



fireplace and stove wood is by the cord 
or fractional parts of a cord, however, 
nothing in Section 2.3^, "Fireplace and 
Stove Wood", shall be construed as 
preventing the purchaser and seller of 
fireplace or stove wood from agreeing on 
a quantity other than a cord or fractional 
parts of a cord. 

(3) Sections 2.9., 2.11., 2. 19. 2.20. , 4. , and 
5. are deleted. 

(4) Section Sr+8 2.19. applies only to kero- 
sene sold in a container or kerosene sold 
through a retail device. In addition, a 
container or a device shall clearly and 
conspicuously indicate for 1-K kerosene 
"SUITABLE FOR USE IN UN VENTED 
HEATERS" and for 2-K kerosene "MAY 
NOT BE SUITABLE FOR USE IN 
UN VENTED HEATERS". 

(5) In Section 2.20. 2.21. , the temperature 
compensation requirements are not man- 
datory. However, if a company elects to 
sell liquefied petroleum gas on a tempera- 
ture compensated basis, then all meters in 
the truck fleet must be equipped with an 
activated automatic temperature compen- 
sator which will remain in continuous 
operation for a period of not less than 
one year. 

(6) The price for propane dispensed into 
containers of less than 240 pounds water 
capacity may be on a minimum price 
basis provided the seller clearly and 
conspicuously displays the minimum 
price at the point of container fill and 
point of sale. This Rule does not apply 
to propane container exchange sales 
where an empty or partially empty con- 
tainer is exchanged for a full one. 

Copies of National Institute of Standards and 
Technology, Handbook 130, "Method of Sale of 
Commodities Regulation" are available for inspec- 
tion in the Office of the Director of the Standards 
Division and may be obtained at a cost as deter- 
mined by the publisher by contacting Superinten- 
dent of Documents, U.S. Government Printing 
Office, Washington, DC. 20402. 

Statutory' Authority G.S. 81A-4; 1 SOB- 14. 



2124 



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February 15, 1994 



PROPOSED RULES 



CHAPTER 43 - MARKETS 

SUBCHAPTER 43L - MARKETS 

SECTION .0200 - FEES: CHARLOTTE FARMERS MARKET 



.0202 


GATE FEES 


The following gate fees shall be paid upon entering the market: 




Day Week 


(1) 


Retail Shed A 


(a) 


March through November December $ 6.00 $ 25.00 


(b) 






icj 


Mav through September - Saturdays only 7.00 


Id) 


North Carolina farmers shall not be subject to the charges set forth in Sub-item (l)(c) of this Rule. 


(2) 


Retail Building B 


(a) 


March through September 7.00 30.00 


(b) 


October through February 7.00 20r09 25.00 


(c) 






(d) 








of this Rule. 


(3) 


Retail Building C 5.00 


(4) 


Eighteen Wheelers 8.00 


(5) 


Deliveries 4.00 



Statutory Authority G.S. 106-22; 106-530. 

CHAPTER 48 - PLANT INDUSTRY 
SUBCHAPTER 48A - PLANT PROTECTION 
SECTION .1700 - STATE NOXIOUS WEEDS 

.1702 NOXIOUS WEEDS 

(a) Class A Noxious Weeds. The North Caroli- 
na Board of Agriculture hereby establishes the 
following list of Class A Noxious Weeds: 

(1) All weeds listed in 7 C.F.R. 360.200 
which is hereby incorporated by refer- 
ence including subsequent amendments 
and editions. Copies of the Code of 
Federal Regulations may be obtained 
from the Superintendent of Documents, 
Government Printing Office, Washing- 
ton, DC 20402, at a cost of twelve 
dollars ($12.00); 

Elodea, African -- Lagarosiphon spp. 
(all species); 

Fern, Water - Salvinia spp. (all except 
S. rotundifolia); 

Stonecrop, Swamp — Crassula helmsii; 
Water-chestnut -- Trapa spp. 

(b) Class B Noxious Weeds. The North Caroli- 
na Board of Agriculture hereby establishes the 
following list of Class B Noxious Weeds: 



(2) 
(3) 

(4) 
(5) 



(1) Betony, Florida— Stachys floridana 
Shuttlew. ; 

(2) Fieldcress, Yellow— Rorippa sylvestris 
(L.) Bess.; 

(3) Loosestrife, Purple — Lythrum salicaria 
L-7 — Any Lythrum species not native to 
North Carolina ; 

(4) Puncturevine— Tribulus terrestris L.; 

(5) Thistle, Canada— Cirsium arvense (L.) 
Scop. ; 

(6) Thistle, Musk— Carduus nutans L.; 

(7) Thistle, Plumeless— Carduus acanthoides 
L.; 

(8) Watermilfoil, Eurasian — Myriophyllum 
spicatum L.; 

(9) Waterprimrose, Uruguay — Ludwigia 
uruguayensis (Camb.) Hara. 

(c) Class C Noxious Weeds. The North Caroli- 
na Board of Agriculture hereby establishes the 
following list of Class C Noxious Weeds: none. 

(d) Other Noxious Weeds. The Commissioner 
may take appropriate action against any other 
noxious weed as provided in the Plant Pest Law, 
Article 36, Chapter 106 of the General Statutes. 

Statutory Authority G.S. 106-420. 

. 1 703 REGULATED AREAS 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2125 



PROPOSED RULES 



(a) Except as permitted in 2 NCAC 48 A .1705 
and .1706, the following is prohibited: 

(1) The movement of Canada Thistle 
[Cirsium arvense (L.) Scop.] or any 
regulated article infested with Canada 
Thistle from the following counties is 
prohibited: Ashe, Avery, Haywood, 
Mitchell, Northampton, Yancey; 

(2) The movement of Class A or B noxious 
weeds or any regulated article infested 
with Class A or B noxious weeds into 
North Carolina is prohibited; 

(3) The movement of a Class A noxious 
weed or any regulated article infested 
with any Class A noxious weed is 
prohibited throughout the State; 

(4) The movement of Eurasian 
Watermilfoil (Myriophyllum spicarum 
L.) or any regulated article infested 
with Eurasian Watermilfoil from the 
following counties is prohibited: 
Halifax, Northampton, Perquimans, 
Tyrrell, Warren; 

(5) The movement of Florida Betony 
(Stachys floridana Shuttlew.) or any 
regulated article infested with Florida 
Betony from the following counties is 
prohibited: Bladen, Brunswick, 
Cumberland. Forsyth, Hoke, New 
Hanover, Onslow, Wake; 

(6) The movement of Musk Thistle 
(Carduus nutans L.) or any regulated 
article infested with Musk Thistle from 
the following counties is prohibited: 
Buncombe, Cleveland, Chatham, 
Gaston, Henderson, Lincoln, Madison, 
Randolph, Rowan, Rutherford; 

(7) The movement of Plumeless Thistle 
(Carduus acanthoides L.) or any 
regulated article infested with Plumeless 
Thistle from the following counties is 
prohibited: Jackson, Haywood, 
Jackson, Madison. Watauga; 

(8) The movement of Puncturevine 
(Tribulus terrestris L.) or any regulated 
article infested with Puncturevine from 
the following counties is prohibited: 
Durham, New Hanover; 

(9) The movement of Purple Loosestrife 
(Lythrum salicaria — i^j any Ly thrum 
species not native to North Carolina or 
any regulated article infested with 
Purple — Loosestrife any non-native 
Lythrum species from the following 
counties is prohibited: Forsyth, 



Watauga; 

(10) The movement of Uruguay 
Waterprimrose [Ludwigia uruguayensis 
(Camb.) Hara.] or any regulated article 
infested with Uruguay Waterprimrose 
from the following counties is 
prohibited: Bladen, Brunswick, 
Columbus, Durham, Granville, Hyde, 
New Hanover, Orange, Rowan, Wake, 
Warren; 

(11) The movement of Yellow Fieldcress 
[Rorippa sylvestris (L.) Bess.] or any 
regulated article infested with Yellow 
Fieldcress from the following county is 
prohibited: Orange. 

(b) Other regulated areas. The Commissioner 
may take appropriate action as authorized under 
the Plant Pest Law, Article 36, Chapter 106 of the 
General Statutes, to designate as a regulated area 
any state or portion of a state in which he has 
reasonable cause to believe that a noxious weed 
exists, and there is an immediate need to prevent 
its introduction, spread or dissemination in North 
Carolina. 

Statutory Authority G.S. 106-420. 

SUBCHAPTER 48B - FERTILIZER 

SECTION .0100 - FERTILIZER 
STANDARDS 

.0119 DATA 

Sub s tantiation of data to back up claims made is 
requested when there is a question a s to whether 
the product will perform a s claimed. — If such data 
i s not available, registration i s refu s ed. Data to 
substantiate claims are requested when questions 
arise regarding the ability of a product to perform 
as claimed. Data should be developed from tests 
conducted under conditions identical to or closely 
related to those present in North Carolina. If such 
data are not available, registration is refused. 

Statutory Authority G.S. 106-673. 

CHAPTER 53 - AQUACULTURE 

.0001 AQUACULTURE LICENSES 

(a) A person who owns or operates an aquacul- 
ture facility for the purpose of possession, produc- 
tion, transportation, sale or commercial catchout of 
the species listed in G.S. 106-761. shall obtain a 
license from the Department of Agriculture. 

(b) Applications for licenses may be obtained 



2126 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



PROPOSED RULES 



from the Department of Agriculture, Division of 
Aquaculture and Natural Resources, P.O. Box 
27647, Raleigh, NC 27611. Completed applica- 
tions shall be returned to the same address. 
(c) The application shall include: 
ill 



m 



License(s) being requested: 
Aquatic Propagation and Production 
Facility License; 
Commercial Catchout License; 
Holding Pond/Tank Permit; 

(2) Name of facility; 

(3) County of facility; 

(4) Address and telephone number of facili- 

& 

(5) Name of responsible agent for the 

facility; 

(6) Address and telephone number of re- 
sponsible agent; 

(7) Description of primary activities at the 
facility fhatchery, gamefish production, 
catchout, food fish production, etc.); 

(8) Primary species to be possessed on the 
facility. 

(d) An Aquaculture Propagation and Production 
Facility License must be obtained for all freshwa- 
ter aquaculture facilities as defined in G.S. 
106-758(2) except for Commercial Catchout and 
Holding Pond/Tank operations. The license shall 
be issued without charge and shall be valid for five 
years. 

(e) A Commercial Catchout Facility License 
must be obtained for a privately owned pond, lake, 
raceway, manmade stream or other water holding 
facility where fish are stocked for the purpose of 
harvest by hook and line. Such facilities sell the 
fish on a fee rjer unit time basis or fee per unit 
weight basis. This does not include privately 
owned ponds where fish populations naturally 
regenerate. 

(1) Receipts shall be provided to the pur- 
chasers of fish from Commercial 
Catchout Facilities. The receipt shall 
include the name of the facility, the 
date and the number, species and 
weight of the fish sold. 
No fish taken from 



(2) No fish 



a Commercial 



Catchout Facility may be resold by the 
purchasing angler for any reason. 
(3) The license shall be issued without 
charge and shall be valid for five years, 
(f) A Holding Pond/Tank Permit shall be ob- 
tained for all facilities holding live food or bait 
species for sale, except those facilities which are 
licensed as Aquaculture Propagation and Produc- 
tion Facilities. This permit shall be valid for two 



years and shall be issued without charge. 
Statutory Authority G.S. 106-761. 

****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Board of Agriculture 
intends to adopt rules cited as 2 NCAC 43L .0306 
- .0339 and amend 2 NCAC 43L .0113, .0304 - 
.0305; 48B .0113 and .0121 . 

1 he proposed effective date of this action is June 
1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on March 24, 1994 at the Gov. James B. 
Hunt, Jr. Horse Complex (Restaurant), 4601 
Trinity Rd. , Raleigh, NC 27607. 

Ixeason for Proposed Action: 

2 NCAC 43L . 0113 - To offset increased operating 
costs. 

2 NCAC 43L . 0304 - To provide for rental of new 
facilities at the Western North Carolina Agricultur- 
al Center and conforming technical changes. 
2 NCAC 43L .0305 - To provide for rental of new 
facilities at the Western North Carolina Agricultur- 
al Center and conforming technical changes. 
2 NCAC 43L .0306- .0339 - To provide rules for 
operation of Western North Carolina Agricultural 
Center. 

2 NCAC 48B . 0113 - To make terminology consis- 
tent with recent amendments to the Fertilizer Law. 
2 NCAC 48B . 0121 - To make terminology consis- 
tent with amendments to the Fertilizer Law. 

Lsomment Procedures: Interested persons may 
present their statements either orally or in writing 
at the public hearing or in writing prior to the 
hearing by mail addressed to David S. McLeod, 
Secretary of the North Carolina Board of Agricul- 
ture, P.O. Box 27647, Raleigh, NC 2761 1 . 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2127 



PROPOSED RULES 



CHAPTER 43 - MARKETS 



SUBCHAPTER 43L - MARKETS 



SECTION .0100 - FEES: STATE FARMERS' MARKET AT RALEIGH 



.0113 GATE FEES 

Gate fees shall be as follows: 
<±) Wholesale Fees: 



W- 



®- 



*&■ 



m- 



&- 



m- 



&- 



to- 



cars or station wagons 



$ 3.00 



fb} car and trailer6.00 

{e) trucks less than one ton 



-+m 



trucks le ss than one ton and trailer 



(e) trucks one ton thru 6 wheel ( s traight job) 



-&£9 



-7^0 



trucks — 10 wheel or tractor and trailer 



-grGO 



— nonresident sellers shall pay twice the above stated fees. 
Truckers Shed Fees: 



trucks less than one ton 



trucks less than one ton and trailer 



$ 6.00 first day 
6.00 following days 



m- 



fe} trucks one ton thru 6 wheel (straight job) 



9.00 first day 
6.00 following days 
8.00 first day 



6.00 following days 



trucks 10 wheel or tractor and trailer 



fp) space by week — $36.00 to begin on Monday 

ff) space by month — $90.00 to begin only from 1 10 on a calendar month 



10.00 first day 
8.00 following days 



rates after the 10th will 



be daily or weekly 
Retail Fees — Retail Shed: 



(e) all months except June. July, August 



$ 6.00 



fees for June. July, August 



-=hm 



{e) off season holding fee of seventy five dollars ($75.00) applies only to center shed and Christmas 



W" 






#»- 



m 

(a) 
£b) 

<^ 
id) 
<e) 
ffi 
(2) 
(a) 



tree growers. 
Retail Fees — Farmers Area: 



all month s except June, July. August 



$ 5.00 



— fee s for June, July, August 

— nonresident seller s shall pay twice the above stated fees. 
Delivery Fees: 



-6^0 



cars, cars/trailers, pickups, pickups/trailers, straight 
trucks 6 wheels: le ss than 100 package s 



tO0 



100 250 package s 

over 250 packages 

10 wheeler s or tractor trailer s : 



-^QO 



-^QQ 



less than 100 packages 
4G9 — 4 00 packages 



$ 2.00 



-^m 



over 4 00 packages 

Farmers Area - Wholesale: 



-4^m 



all vehicles less than one ton 
trucks one ton thru six wheel straight truck 
trucks -_ JO wheel (one space) 
trucks : tractor trailer 
trailers 

Sellers of out-of-state products shall pay double the above-stated fees. 
Farmers Area - Retail: 
January. February, March 



S 4JX) 

7.00 

8.00 

10.00 

4.00 



$_ 5.00 



2128 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



PROPOSED RULES 



(b) April. May, June, July, August, December 7.00 

(c) September, October, November 6.00 

(d) An off-season holding fee of seventy-five dollars ($75.00) applies only to Christmas tree sellers. 

(e) Sellers of out-of-state products shall pay double the above-stated fees. 
£3} Building 3 (Retail): 

(a) January, February, March $ 6.00 

(b) April, May, September. October 7.00 

(c) June, July, August 6.00 

(d) November, December 8.00 
(4) Building 4 (Truckers): 

(a) all vehicles thru six wheel straight truck $ 8.00 

(b) trucks : K) wheel, tractor trailer 12.00 

(c) space by month - five months and over 100.00 

(d) space by month - one to four months 125.00 
(5) Delivery Fees: Wholesale Dealers, Building A\ 

(a) all vehicles thru six wheel: 

less than 50 packages $ 1.00 

51-300 packages 3.00 

301 up packages 4.00 

(b) 10 wheel tractor trailers: 

less than 100 packages 3.00 

J01 - 500 packages 5.00 

501 up packages 7.00 

For other services provided to market users, the market manager may charge reasonable fees to offset the 

costs of providing such services. 

Statutory Authority G.S. 106-530. 

SECTION .0300 - FEES: CHARLOTTE FARMERS MARKET 

.0304 HORSE FACILITY 

(a) Fees for non-livestock events are as follows: 

(1) Fees for use of the show arena are six hundred dollars ($600.00) per show day or ten percent of 
the gate, whichever is greater, provided that for the show arena to be opened before 64)9 7:00 a.m. 
or after midnight requires an additional fee of fifty dollars ($50.00) per hour or part thereof for a 
maximum of three hundred dollars ($300.00). 

(2) Fees for use of the covered practice ring shall be three hundred dollars ($300.00) per day, provided 
that it is used in conjunction with the show arena. The covered practice ring may be rented 
s eparately for four hundred dollars ($ 4 00.00) per show day if a show is held within 120 days of 
the booking date. 

(3) Fees for use of the covered arena and office shall be five hundred dollars ($500.00) per day or ten 
percent of the gate, whichever js greater, provided that for the covered arena and office to be 
opened before 7:00 a.m. or after midnight requires an additional fee of fifty dollars ($50.00) per 
hour or part thereof for a maximum of two hundred and fifty dollars ($250.00). 

(4) (3) The open practice -Ftftg rings shall be rented at the ground rental rate as set forth in Rule 
.0305(e) of this Section. 

(5) (^A twenty-five dollar ($25.00) fee shall be charged for any electrical connection to facility power 
outlets. 

(6) {§) The fees set forth in Paragraph (b) of this Rule shall apply to any activity not specifically 
covered under this Paragraph. 

(b) Fees for livestock events are as follows: 

( 1 ) Fees for use of the show arena are five hundred dollars ($500.00) per show day or ten percent of 
the gate, whichever is greater; provided that for the show arena to be opened before 6:00 a.m. or 
after midnight requires an additional fee of fifty dollars ($50.00) per hour or part thereof for a 
maximum of two hundred and fifty dollars ($250.00). Rental of the show arena shall include the 



8:22 NORTH CAROLINA REGISTER February 15, 1994 2129 



PROPOSED RULES 



covered practice ring and the open practice ring . The open practice ring adjacent to show arena 
may be rented for one hundred dollars ($100.00) per show day provided it is used in conjunction 
with the show arena. This ring may be rented separately for two hundred dollars ($200.00) per 
show day, provided it does not interfere with an event taking place in the show arena. 

(2) The covered practice ring may be rented separately for two hundred and fifty dollars ($250.00) per 
s how day if a show is held within 120 days of the booking date. — Rental of the covered practice 
ring shall include the open practice ring. Fees for use of the covered arena and office shall be four 
hundred dollars ($400.00) per day or ten p ercent of the gate, whichever is the greater, provided 
that for the covered arena and office to be opened before 7:00 a.m. or after midnight requires an 
additional fee of fifty dollars ($50.00) per hour or part thereof for a maximum of two hundred 
dollars ($200.00). Rental of the covered arena and office includes the opened practice ring 
adjacent to the covered arena and office. 

0) The covered practice ring may be rented s eparately for two hundred and fifty dollars ($250.00) per 

show day if a show is held more than 120 day s from the booking date; provided that a minimum 
of one thousand five hundred dollars ($1,500) revenue from covered practice ring and s tall rental 
i s guaranteed to the Agricultural Center. — Rental of the covered practice ring shall include the open 
pract i ce ring. 

(3) f4) Fees for stalls are as follows: 

Days Fees 

(A) 1 $12.00; $10.00 minimum 

for youth show; 

(B) 2 $20.00; 

(C) 3 $26.00; 

(D) 4 $32.00; 

(E) 5 $36.00; and 

(F) $3.00 per additional day thereafter. 

(4) 0) Agricultural youth organizations may receive a 50 percent discount for stall rentals and a 25 
percent discount on show arena rental when participation is restricted to youth. Educational clinics 
and seminars may receive a 50 percent discount on show arena and covered practice ring rates 
when left in clean condition. The Agricultural Center Manager will decide what qualifies as 
educational clinics and seminars. 

(5) (6) A fee of seventy-five dollars ($75.00) per day is required for use of the facility's jumps. 

(6) f7) A fee of twenty-five dollars ($25.00) per hour is required for use of the facility's motorized 
grounds equipment. Fee shall include operator. 

(7) {&) Fees for use of the facility's office equipment, if available, is charged on an expense incurred 
basis. 

(8) (9) Fees for security and other support services at any event are charged on a cost plus ten percent 
basis. The need for security is to be determined by facility management in consultation with show 
management. 

(9) f+0) A fee of ten dollars ($10.00) per night is required for any camper parking overnight on facility 
grounds. Any horse trailer connected to a power outlet at the facility will be charged the same fee 
as a camper. 

(10) H+) Miscellaneous horse facility equipment is available according to the following fee schedule: 

(A) metal livestock panels - three dollars ($3.00) each per show; 

(B) small livestock panels - one dollar ($1 .00) per panel or if installed, four dollars ($4.00) per pen; 

(C) center ring set-up - thirty-five dollars ($35.00); 

(D) removal of end gates - fifty dollars ($50.00); 

(E) farm wagon for staging - twenty-five dollars ($25.00) each; 

(F) chairs - forty cents ($0.40) each per day; 

(G) tables - two dollars ($2.00) each per day; 

(H) paper table coverings - thirty-five cents ($0.35) each; 

(I) portable PA system - twenty-five dollars ($25.00) per event; 

(J) wireless mike system - twenty-five dollars ($25.00) (batteries not included); 

(K) 9 volt batteries - one dollar ($1 .00) each; 

(L) podium - ten dollars ($10.00) per day; 



2130 8:22 NORTH CAROLINA REGISTER February 15, 1994 



PROPOSED RULES 



(M) 
(N) 
(O) 

IE1 

im 

(12) 



(13) 
(14) 
(15) 



projection screen - ten dollars ($10.00) per day; 

slide projector - thirty dollars ($30.00) per day; 

two-way radio - twenty-five dollars ($25.00)^ 1 

VHF hand held transceiver ; six dollars ($6.00) each per day. 
{4-2} A fee of twenty-five dollars ($25.00) per concessionaire is required. 

{4-34 A lessee must have prior approval of the Agricultural Center Manager before catering services 
will be allowed on the grounds. A fifty dollar ($50.00) fee is charged for catering services that 
serve no more than 200 plates. For each plate served in excess of 200 plates, a fee of thirty-five 
cents ($0.35) per plate shall be charged. 

{444 Auditing of ticketed events: seven dollars ($7.00) per hour for ticket sellers, six dollars 
($6.00) per hour for ticket takers and securing doors and ten percent administrative charge. 
{4-54 There will be a charge of ten dollars ($10.00) per hour for the facility to be opened with 
minimum lighting after 5:00 p.m. the day prior to a show event. 

{46) The Agricultural Center Manager shall establish reasonable fees for any services or activities 
not mentioned herein. 



Statutory Authority G.S. 106-22; 106-530. 



.0305 LIVESTOCK FACILITY 

(a) Fees for use of the livestock facility are as 
follows: 

(1) Non-agricultural groups shall be 
charged two hundred dollars ($200.00) 
per day for use of the sales arena only 
or three hundred dollars ($300.00) per 
day for the sales arena and barn; 

(2) Agricultural youth groups are charged 
fifty dollars ($50.00) per day for use of 
the sales arena only or one hundred 
dollars ($100.00) per day for the sales 
arena and barn; 

(3) Agricultural groups shall be charged 
one hundred dollars ($100.00) per day 
for use of the sales arena only or two 
hundred dollars ($200.00) per day for 
sales arena and barn; 

(4) Use of the facility's kitchen is set at 
thirty dollars ($30.00) per day for 
agricultural groups; 

(5) Use of the facility's kitchen is set at 
thirty dollars ($30.00) per day or 30.5 
percent of gross receipts after taxes, 
whichever is the greater, for non-agri- 
cultural groups; 

(6) Any group renting the sales arena only 
shall pay an additional fee of twenty- 
five dollars ($25.00) for any time after 
12:15 a.m. but before 2:00 a.m. The 
fee shall be twenty-five dollars ($25.00) 
per hour after 2:00 a.m. 

(b) Fees for use of folding chairs, tables, live- 
stock panels and paper table coverings shall be 
based on the fee schedule set forth in .0304(b){444 
(10) of this Section. 

(c) A fifty dollar ($50.00) charge for the remov- 



al of bedding from the barn is required. 

(d) Fees for use of the Youth Building are set at 
thirty dollars ($30.00) per day. 

(e) Ground rental shall be at the rate of ten cents 
($0.10) per square yard or one hundred and fifty 
dollars ($150.00) per day^ whichever is greater. 

(f) Ticketed event charges shall be at the daily 
rate of the facility or ten percent of gate receipts, 
whichever is greater. 

(g) Food catering fees shall be provided at the 
rate set forth in .0304(b){44) 112} of this Section. 

Statutory Authority G.S. 106-22; 106-530. 

.0306 INTERPRETATION AND VIOLATION 

(a) The Western North Carolina Agricultural 
Center Manager shall have authority to enforce 
these Rules and settle and determine all matters, 
questions and differences in regard thereto, or 
otherwise arising out of, connected with or inci- 
dent to the center and the management, control and 
protection of the Western North Carolina Agricul- 
tural Center grounds, provided, however, any 
aggrieved party may appeal to the Office of Ad- 
ministrative Hearings. 

(b) Any person who violates any of these Rules 
will forfeit all privileges and premiums when 
applicable and be subject to such penalty as these 
Rules may provide. 

Statutory Authority G. S. 106-22; 106-530. 

.0307 TRAFFIC REGULATIONS 

(a) Applicable North Carolina laws relating to 
traffic, parking and the operation of motor vehi- 
cles, as amended from time to time, are hereby 
incorporated into and made a part of these Rules, 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2131 



PROPOSED RULES 



and the same shall be in full force and effect as to 
all parts of the Western North Carolina Agricultur- 
al Center, and as to the operation of motor vehi- 
cles therein and thereon, and shall have the same 
force and effect as though the said provisions were 
herein s pecifically set out jn full. 

(b) Parking on the Agricultural Center grounds 
is permissible 24 hours per day during any event 
taking place at the complex with the exception of 
the North Carolina Mountain State Fair. Parking 
during the North Carolina Mountain State Fair is 
prohibited between the hours 1 :00 a.m. and 6:00 
a.m. All trucks and motorized vehicles must 
complete their deliveries and be off the grounds by 
2:00 p.m. each day. Absolutely no deliveries will 
be allowed (with the exception of ice) by the 
Agricultural Center. During the period of the fair, 
certain locations within the Agricultural Center 
grounds will be designated "restricted area. " 
Parking or vehicular traffic within such restricted 
areas is prohibited without special permit. At any 
time, if a vehicle is ]eft more than 24 hours after 
an event has vacated the grounds, it may be towed 
away and impounded at owner's risk and expense. 

(c) All vehicles shall be parked in a designated 
parking area including horse and livestock trailers. 
No horse or livestock trailer will be allowed to 
park adjacent to stall barns. Any trailer and any 
other vehicle left adjacent to the stall barn area for 
more than eight hours may be towed away and 
impounded at owner's risk and expense. During 
the North Carolina Mountain State Fair only those 
vehicles that are classed as exhibits and are parked 
in the exhibition area can be on the grounds, 
except those that are parked in designated area. In 
no such case can any unauthorized vehicle be 
operated in the independent or carnival midway 
during the period of the annual North Carolina 
Mountain State Fair. Western North Carolina 
Agricultural Center personnel are authorized to use 
vehicles, when necessary, on the grounds during 
the fair In performance of duties. 

(d) Vehicles and contents that are parked in 
designated parking area will be left at owner's 
risk. 

(e) Any trailer or similar vehicle used for 
sleeping or cooking must be parked in the limited 
areas established for that purpose. 

(f) A vehicle parked in violation of North 
Carolina statutes and these Rules shall be removed 
to a parking lot outside the fence. Administration 
office shall be notified of make of vehicle, license 
and where it is moved to. Western North Carolina 
Agricultural Center [s not responsible for any 
damage in moving or after moving said vehicle. 



(g) The manager of the Western North Carolina 
Agricultural Center shall have authority to order 
the placement of such traffic control or restrictive 
signals and signs on the Agricultural Center 
grounds as he shall deem necessary for the proper 
safety, protection and control of said grounds. 

Statutory Authority G.S. 106-22; 106-530. 

.0308 ADVERTISING MATTER 

(a) Distribution of advertising material or matter 
of any kind, nature, or description by concession- 
aires, exhibitors, patrons attending annual exhibi- 
tions on the Western North Carolina Agricultural 
Center grounds, political parties, or by any other 
person or persons whomsoever, shall be, and the 
same hereby is, prohibited on the Agricultural 
Center grounds unless such distribution shall be 
within and from the assigned and designated space 
and shall have been first duly authorized by the 
Western North Carolina Agricultural Center 
Manager upon application thereto, and that adver- 
tising material or matter of any kind, nature or 
description shall be on the counter or display area 
and shall not be handed out unless the material js 
requested by a patron attending an event at the 
Western North Carolina Agricultural Center. 
Promiscuous handing out of such material, even 
from designated areas, is strictly forbidden. 

(b) The distribution in any manner of advertising 
material having a gummed or adhesive backing, 
such as labels, lapel badges, car bumper or win- 
dow stickers, etc., whether such distribution shall 
be from a contracted exhibit or concession space 
or elsewhere, is prohibited upon the Agricultural 
Center grounds. Persons or firms found distribut- 
ing such materials shall immediately forfeit all 
space right and in addition, may be held financial- 
ly responsible for any and all damage done to or 
occasioned by the Western North Carolina Agri- 
cultural Center as a result of these materials being 
affixed to Agricultural Center property by third 
parties. 

(c) Operation of a sound truck or other mobile 
vehicle equipped with a public address system or 
sign, whether such vehicle is in motion or parked 
on the Agricultural Center grounds, whether 
within or without the fenced-off area thereof, js 
hereby prohibited unless authorized by the Western 
North Carolina Agricultural Center Manager. 

(d) For the purpose of enforcing the provisions 
of this Section, jt is hereby determined that the 
Western North Carolina Agricultural Center 
property shall consist of and constitute that certain 
area of land in Buncombe County, North Carolina 



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PROPOSED RULES 



bounded on the south by property owned by the 
North Carolina Department of Transportation 
(proposed NC 280 Interchange), on the east by. I; 
26, on the north by Fanning Bridge Road and on 
the west by Airport Road. 

(e) The prohibitions and restrictions relating to 
advertising in these Rules shall not be construed as 
being applicable to lettered service trucks advertis- 
ing a concern or its products while making neces- 
sary deliveries of merchandise or service to con- 
cessionaires or exhibitors on the Agricultural 
Center grounds, or the normal small advertising on 
bumpers and windows of vehicles. 

Statutory Authority G.S. 106-22; 106-530. 
.0309 ADMISSION REGULATIONS 

(a) All persons entering the Western North Carolina Agricultural Center grounds during the North Carolina 
Mountain State Fair must pay the established admission fee, except persons holding worker's permits. One- 
time-only admissions will be issued to those persons who are employed by the fair or are asked to appear on 
the grounds by the fair management for a specific purpose, relative to the operation of the fair. 

(b) The gates of the Western North Carolina Agricultural Center will open one hour prior to fair time and 
close one hour after closing of the fair midway each day of the fair. Opening of the fair midway and exhibit 
building may vary each day of the fair. 

(c) The Western North Carolina Agricultural Center Manager may operate a pass-out system at one or more 
of the outside gates during the fair. Persons exiting through these gates may, upon request, have their hand 
or vehicle stamped for readmittance through the same gate without additional charge. Readmittance must occur 
before 10:00 p.m. on the same day as pass-out or the hand stamp will not be honored. 

(d) Outside gate admission prices are as follows: 

(1) adult/child, _13 years of age and over $4.00 

(2) child, 6 through 12 years of age 2.00 

(3) child, under 6 years of age Free 

(e) Outside gate admission prices for advance ticket sales are as follows: 

(1) adult/child, 13 years of age and over $3.25 

(2) child, 6 through 12 years of age 1.50 

(3) child, under 6 years of age Free 

(4) adult group sales purchasing a minimum of 40 tickets 3.00 

(f) The Western North Carolina Agricultural Center Manager may offer to exhibitors and concessionaires 
during the North Carolina Mountain State Fair a reduced rate for gate admission. If offered, such discount 
tickets may be purchased from the administration office. Each discount ticket shall allow one admission 
during each day of the fair. These cards shall be non-refundable, whether used or not, and shall be used only 
by persons involved with concessions or exhibits, and not for general admission. The purchase of said tickets 
shall furnish to the Western North Carolina Agricultural Center Manager a list of names to whom ticket will 
be issued. 



Statutory Authority G.S. 106-22; 106-530. 

.0310 GENERAL 

(a) Any person or persons who shall make, aid, 
countenance or assist in making any noise, riot, 
disturbance and all persons who shall collect in 
bodies or crowds on the Western North Carolina 
Agricultural Center grounds for unlawful purposes 
or to the annoyance or disturbance of citizens and 
those who are attending and/or participating m an 
event at the Agricultural Center or lawfully on the 



Agricultural Center grounds may be expelled from 
the complex for such period of time as the manag- 
er of the complex may determine. 

(b) Any person who engages in any unlawful 
activity or behavior, or any activity or behavior 
which interferes with or is detrimental to the 
operation of the Agricultural Center may be 
expelled from the Agricultural Center grounds for 
such period of time as the manager of the Western 



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2133 



PROPOSED RULES 



North Carolina Agricultural Center may deter- 
mine. 

(c) Any person who shall unnecessarily or 
maliciously beat, abuse or injure any animal on the 
Western North Carolina Agricultural Center 
grounds shall be subject to the penalties and 
punishment provided jn Paragraph (a) of this Rule. 

(d) No person shall carry from the specific area 
of any concession or other place of sale on the 
grounds of the Agricultural Center, any liquid 
beverage in glass containers, nor shall any person, 
when in motion about the grounds, carry any such 
liquid beverages in glass containers. This Section 
shall not apply to non-alcoholic liquids brought 
into the Agricultural Center grounds as a part of 
picnic meals or the like when consumed and used 
in a stationary locale. This Rule is promulgated 
for the welfare and protection of all visitors to the 
Agricultural Center and violators hereof shall be 
subject to the penalties provided in Paragraph (a) 
of this Rule. 

(e) Dogs and cats are not allowed on the Agri- 
cultural Center grounds unless they are under 
leash, are under the control of the person having 
possession of such animal or are on display in an 
exhibit contracted by the Agricultural Center or a 
promoter who is leasing facilities. 

Statutory Authority G.S. 106-22; 106-530. 

.0311 BOOTH RULE 

(a) Solicitation of donations or the sale, offering 
for sale or distribution of any item, including 
written or printed material, is prohibited, except 
from an assigned space in compliance with 2 
NCAC 20B .0200. This Rule does not apply to 
wholesale vendors operating |n accordance with 2 
NCAC 20B .0200. 

(b) Any person who violates this Rule may be 
ejected from the Agricultural Center grounds and 
prohibited from returning. 

Statutory Authority G.S. 106-22; 106-530. 

.0312 COMMERCIAL EXHIBITS 
AND CONCESSIONS 

(a) The Western North Carolina Agricultural 
Center management shall allow the lessee to 
handle the sale of all exhibit space within the 
confined leased facilities, with the exception of the 
North Carolina Mountain State Fair. The lessee 
shall pay the Agricultural Center twenty-five 
dollars ($25.00) per concessionaire for any as- 
signed space granted to the lessee under his con- 
tract. No concessions are granted to lessee or 



anyone acting under the lessee for the sale or 
dispensing of any kind of beverages or foods. 
During the North Carolina Mountain State Fair the 
Agricultural Center may issue the two following 
types of contracts: 

(1) Concession Contracts shall include all 
contracts for the sale or delivery of 
food, merchandise or service on or 
from leased premises during the period 
of the North Carolina Mountain State 
Fair. Concessionaires who operate 
according to Agricultural Center rules 
may be allowed to renew their con- 
tracts. Space not claimed by former 
occupants within the time specified, 
may be made available to new appli- 
cants. 
Commercial Exhibit Contracts shall 



ill 



include all contracts for exhibition of 
goods, machinery and services for 
advertising purposes. Institutions or 
individuals operating under exhibit 
contracts may be permitted to take 



orders and partial deposits for future 
delivery, but may not make delivery on 
or from their premises during the peri- 
od of the North Carolina Mountain 
State Fair. The same rule regarding 
renewal of space holdings by former 
concessionaires applies to commercial 
exhibitors. 
(b) Due to grounds or space alterations or other 
changes, the Agricultural Center management shall 
have authority to eliminate certain previously 
available space from year to year. In such instanc- 
es, the Agricultural Center reserves the right to 
offer substitute locations or to discontinue con- 
tracts entirely. 

Statutory Authority G.S. 106-22; 106-530. 

.0313 APPLICATIONS 

Mountain State Fair Application for space either 

in buildings or on the grounds shall be directed to: 

Western North Carolina Agricultural Center 

1301 Fanning Bridge Road 

Fletcher, North Carolina 28732 

Statutory Authority G.S. 106-22; 106-530. 

.0314 OCCUPANCY OF SPACE 

(a) This Rule applies only to the North Carolina 
Mountain State Fair. Any other event occupancy 



of space will be handled by the event promoter. 
(b) No space shall be occupied until full pay- 



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PROPOSED RULES 



ment is made. The original copy of the rental 
contract shall be signed and returned to the Agri- 
cultural Center Manager. Final payment on 
Concession and Commercial Exhibit Contracts is 
due at the Western North Carolina Agricultural 
Center Office no later than August 15. Renters of 
space shall keep a copy of the rental contract on 
the rented premises. 

Statutory Authority G.S. 106-22; 106-530. 

.0315 FORFEITURE 

(a) This Rule shall apply to the North Carolina 
Mountain State Fair. Any other event, the pro- 
moter of event shall handle their forfeiture rule. 

(b) Space assigned and not occupied by 4:00 
p.m. on the first day of the fair, as well as all fees 
previously paid, shall be forfeited to the Agricul- 
tural Center as liquidated damages. Any space 
which is not open for business or does not have an 
attendant at the space during normal operating 
hours of the fair, shall, at the option of the Agri- 
cultural Center Manager, be forfeited. Space 
rental contracts shall not be canceled by the lessee 
without written notification to Western North 
Carolina Agricultural Center Manager by August 
15, 

Statutory Authority G.S. 106-22; 106-530. 

.0316 EXTORTION OF FAIR PATRONS 
OF THE WNC AGRICULTURAL 
CENTER 

The Western North Carolina Agricultural Center 
Manager and Agricultural Center employees or 
agents shall use every precaution to guard against 
extortion in any form practiced upon the patrons of 
the Agricultural Center. Any extortion practiced 
by a lessee or anyone working under the lessee 
contract may, in the discretion of the Agricultural 
Center management, cause the forfeiture of con- 
tract money paid, or expulsion from the grounds, 
or both. 

Statutory Authority G.S. 106-22; 106-530. 

.0317 REMOVAL OF STRUCTURES 
AND MATERIAL 

Any person, firm or corporation owning build- 
ings or materials upon the Agricultural Center 
grounds without lease, or whose lease has expired, 
who shall fail to remove same within 72 hours, 
shall forfeit all claim thereto and the Western 
North Carolina Agricultural Center may take 
possession thereof and the property will become 



the property of the Agricultural Center. 
Statutory Authority G.S. 106-22; 106-530. 

.0318 AREA RESTRICTIONS 

Events other than the North Carolina Mountain 
State Fair, restrictions if any other than those 
mentioned elsewhere, will be handled by the 
events promoter. During the North Carolina 
Mountain State Fair a lessee must confine his 
business, and the promotion and advertising of 
same on the Agricultural Center grounds to the 
space assigned him. Failure to comply with this 
Rule shall subject lessee, in the manager's discre- 
tion, to forfeiture of space privileges without 
reimbursement. 



Statutory Authority G.S. 106-22; 106-530. 

.0319 LOUDSPEAKERS 

No loudspeaker, amplifier, radio or other broad- 
casting device is permitted on the Agricultural 
Center grounds unless written permission is ob- 
tained from the Western North Carolina Agricul- 
tural Center Manager. Approved loudspeakers 
must be kept at a reasonable volume so as not to 
disturb normal business transactions in adjoining 
exhibits nor the general public. The Agricultural 
Center management reserves the right to revoke 
loudspeaker permission if the provisions of this 
Rule are not observed. 

Statutory Authority G.S. 106-22; 106-530. 

.0320 DRESS OF LESSEES 

Lessees and their help must be neat and tidy in 
their dress. Persons found working, not comply- 
ing with this Rule, may be asked to clean up or 
leave the grounds. 

Statutory Authority G.S. 106-22; 106-530. 

.0321 STORAGE TRAILERS 

Storage trailers will be allowed for any event 
where a lessee has rented or leased an entire 
building or the entire grounds. During the Moun- 
tain State Fair trailers used for storage of supplies 
or offices as a direct part of the concessions or 



exhibits will be permitted to park on the Agricul- 
tural Center property m a location determined by 
the Agricultural Center management and must have 
a sticker or receipt on the trailer proving payment 
has been made for this privilege. 

Statutory Authority G.S. 106-22; 106-530. 



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PROPOSED RULES 



.0322 DISPLAY AND SALE OF WEAPONS 

The display and sale of weapons of any type js 
prohibited on the Agricultural Center grounds 
unless such display, sale or distribution js specifi- 
cally authorized under the terms of an exhibit or 
concession contract executed by the Agricultural 
Center Manager. Failure to comply with this Rule 
shall be cause for the immediate termination of 
contract and removal from the Agricultural Center 
property or such other sanction as shall be deemed 
appropriate by Western North Carolina Agricultur- 
al Center Manager. 

Statutory Authority G.S 106-22; 106-530. 

.0323 AUTHORITY TO ALLOW 
CERTAIN EXHIBITS 

The Agricultural Center Manager shall have 
authority to deny acceptance or prohibit the show- 
ing of any exhibit, animal, concession or show that 
may be falsely entered or represented; or to deny 
acceptance or prohibit the showing of an exhibit, 
animal, concession or show; or authority to re- 
move any sign, banner, display material or adver- 
tising matter if such exhibit or display is contrary 
to law, or violative of the complex's valid interest 
in providing for the health, safety and protection 
of the public. 

Statutory Authority G.S. 106-22; 106-530. 

.0324 ASSIGNMENT OF CONTRACTS 

No contracts or portions thereof may not be 
assigned, interest therein sublet, or otherwise 
disposed of without the written consent of the 
manager. Obligations provided for in said con- 
tracts, including payments for space, electrical 
hook-up. electrical power and gas, shall remain the 
obligation of initial lessee, irrespective of approved 
subleasing or assignment otherwise provided. 

Statutory Authority G.S. 106-22; 106-530. 

.0325 GAS OR ELECTRIC SERVICE 

(a) The Agricultural Center is not responsible or 
liable for failure of electric service. 

(b) Positively no one shall tamper with, or 
change, any of the general lighting in any of the 
Agricultural Center buildings, and no electric 
connection excluding plug-ins shall be made by 
any person not in the direct employ, or under the 
supervision of, the Agricultural Center Manager. 

(c) Prices quoted for electric service are for 
having electrical power available to the Lessee. 
Lessee is responsible for all internal wiring and ]s 



responsible for having adapter plugs, if necessary, 

to connect to Agricultural Center's electrical 

system. 
(d) Agricultural Center Manager reserves the 

right to terminate service if conditions of contract 

are violated. 

Note: This Section addresses rules pertainin g 
only to the North Carolina Mountain State 
Fair. 

Statutory Authority G. S. 106-22; 106-530. 

.0326 EXHIBITS AND EXHIBITORS 

(a) The entry department will be open to receive 
and return exhibits two days prior to the fair and 
two days following the fair, 9:00 a.m. to 5:00 
p.m. 

(b) On the last night of the fair, after closing of 
the fair, exhibits may be packed up and stored for 
removal . Vehicles will be permitted to enter fair 
grounds to remove exhibits two hours after the 
closing on the last day of fair. Livestock, poultry, 
and rabbits will have a special release time on the 
last day of the fair. 

(c) No fair superintendent or other employee 
shall be permitted, directly or indirectly, to make 
an entry in any department of the fair over which 
he presides or wherein he may be employed. 

(d) The fair manager may limit exhibits to the 
facilities available at any given time. 

Statutory Authority G.S. 106-22; 106-530. 

.0327 LIVESTOCK SANITATION AND 
OFFICIAL VETERINARIAN 

(a) All livestock exhibits will be subject to the 
rules and policies as established by the State 
Veterinarian. 

(b) Premises and Management: 

(1) All buildings for the use of animals, 
including exhibition halls or rings, 
stables, yards and pens, shall be main- 
tained in a sanitary condition. All such 
buildings, rings, stables and pens shall 
be thoroughly cleaned and disinfected 
prior to the exhibition. 

(2) If practical, a quarantine division shall 
be establishes. If such quarantine 
division is not available, the owner of 
any livestock or poultry showing symp- 
toms of any infectious or communicable 
disease may be required to immediately 
remove such livestock or poultry from 
the exhibition premises. 

(3) The animal health rules of North Caro- 



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PROPOSED RULES 



Una will be strictly enforces. The rules 
will be included in the livestock section 
of the premium list. 

(c) The official veterinarian shall perform the 
following: 

(1) Approve the cleaning and disinfection 
of the premises before the exhibition is 
opened and before any domestic ani- 
mals or poultry are allowed admission 
to the premises; 

(2) Inspect all livestock and poultry on the 
date admitted to the premises; He shall 
refuse admission to any animal or bird 
showing symptoms of any infectious or 
communicable disease; 

(3) He shall refuse admission to any live- 
stock not accompanied by proper health 
certificates when required; provided he 
may approve admission if he is satisfied 
that proper health certificates are being 
procured or are in transit from the point 
of origin and provided he is satisfied 
that such livestock has not been ex- 
posed to disease; 

(4) He shall inspect all livestock on the 
exhibition premises at lease once daily 
and shall order the immediate removal 
or isolation of any animal or bird show- 
ing symptoms of any infectious or 
communicable disease, and shall order 
and supervise the cleaning and disin- 
fecting of any area from which suspect 
animals or birds are removed; 

(5) At the conclusion of the exhibition, he 
shall forward a written report to the 
Board of Agriculture of all violations, if 
any, of these Rules by an exhibitor of 
the management, and any other perti- 
nent information relative to the exhibit. 

(d) Exhibitors must make all applications for 
entry, specifying the number of animals or birds 
for which accommodations are desired, directly to: 

Entry Department 
Western North Carolina Agricultural Center 
1301 Fanning Bridge Road 
Fletcher, North Carolina 28732 
All applications must be accompanied by the entry 
fee or other fees required by the special rules of 
the particular competitive department in which 
entry is made. The superintendent of the depart- 
ment will make all assignments of space for 
exhibits. 

Statutory Authority G.S. 106-22; 106-530. 



.0328 ENTRY REQUIREMENTS 

(a) All applications for entry must be made in 
accordance with instructions and rules of the 
department premium list. Entry blanks and depart- 
ment rules may be obtained from: 

Entry De partment 

Western North Carolina Agricultural Center 

1301 Fanning Bridge Road 

Fletcher, North Carolina 28732 

The entry blanks, after being filled out and signed. 

must be filed with the entry department not later 

than the date specified for the closing of entries m 

the various department of the fair. 

(b) Entry closing dates for each of the competi- 
tive departments will be determined by the fair 
manager and will be posted m the department 
premium list. 

(c) Exhibitors in the horse, cattle, swine, sheep 
and poultry departments must pay, upon filing 
application for entry, the fees required m these 
departments. 

(d) Any animal or exhibit which shows evidence 
of artificial means having been employed with 
intent to deceive for the purpose of removing or 
remedying physical defects or conformation, shall, 
together with any other entry or entries owned by 
the exhibitor of same, be forthwith excluded from 
participation in any of the awards. The said 
exhibitor likewise shall be prohibited from partici- 
pation in competition and any and all awards or 
premiums previously awarded to said exhibitor 
shall be withdrawn. The judge in each classifica- 
tion shall have authority to make a final determina- 
tion in the matter. 

(e) All animals entered under a breed classifica- 
tion must have been recorded m an association 
recognized by the particular breed. Exhibitors 
must produce a certificate or registry at the request 
of the superintendent in charge of the department. 

(f) All animals shown must be owned by the 
exhibitor from the time of making entry, except as 
otherwise provided hi special rules of the depart- 
ment. 

(g) Exhibitors making entries and not exhibiting, 
shall forfeit all fees paid for entry, stalls, pens and 
space. 

(h) Corporations or partnerships entering for 
competition must be in lawful existence at the time 
of making entry, and all cases must be bona fide, 
and affidavits relating thereto may be required by 
the fair manager from appropriate persons. 

(i) Exhibits which have been erroneously entered 
may, at the discretion of the fair manager or the 
superintendent of the department, be transferred to 
their proper lots previous to judging. If such lots 



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2137 



PROPOSED RULES 



have been judged, they shall not be rejudged. 

£j) Should any individual, partnership or corpo- 
ration enter an animal or article in a name other 
than that of the bona fide owner, except as other- 
wise provided in special department rules, or 
attempt to perpetrate a fraud by the misrepresenta- 
tion of any facts, or m the exhibition of said 
animal or article, the entry thus made shall not be 
allowed to compete for or receive any premiums, 
aiul said individual, par tners hip or corporation 
may, at the option of the fair manager, be barred 
from further showing, and any premiums previous- 
ly awarded may be forfeited. 

(k) Articles entered for premiums which are the 
result of mechanical or artistic skill, must be 
entered in the name of the artist, inventor, manu- 
facturer or maker. 

(!) The fair manager reserves the right to refuse 
entries or prohibit the exhibition of animals or 
articles entered if the showing of such animals or 
articles is contrary to law, or violative of the fair's 
valid interest in providing for the health, safety 
and protection of the fair-going public. 

Statutory- Authority G.S. 106-22; 106-530. 

.0329 JUDGES AND JUDGING 

(a) The judges shall read carefully the general 
rules and all special rules under the head of the 
department or class in which they are to serve; and 
especially note and follow those rules bearing on 
the classes to be judged by them. 

(b) Judges shall not award prizes to an unworthy 
exhibit. No premium or distinction of any kind 
shall be given to any animal or article that is not 
deserving. This Rule shall be in effect whether or 
not there is competition. 

(c) Judges shall report to the superintendent any 
exhibitor who in any way, whether in person or by 
agent or servant, interferes with them or shows 
any disrespect to them during the judging. The 
superintendent may, in his discretion, demand a 
proper apology from such exhibitor or exclude him 
from further competition. The fair may withhold 
from such exhibitor any or al] premiums that have 
been awarded and expel him from further exhibit- 
ing at the fair. 

(d) The judges and persons acting as clerks to 
the judges, must use special care, after awards 
have been made, to see that the same are properly 
entered in the award book, for it is upon this entry 
that the payment of premiums |s made. 

(e) The judge, superintendent and clerk record- 
ing the awards of the department must sign the 
award book at the close of each class immediately 



after all awards in said class have been made. 

(f) Judges will not award premiums to any 
article or animal because of its mere presence. No 
premium will be awarded to any exhibit that does 
not possess high intrinsic merit. Unless otherwise 
specified in the department rules, no exhibitor may 
win more than two premiums in any one individual 
class and not more than one premium m any group 
class. Premiums will be paid to winning exhibi- 
tors as soon after the awards are made as it is 
possible to compile and check all reports. Premi- 
ums not paid during the fair will be mailed to the 
exhibitor at the post office address given on his 



entry form. 

(g) No person who is an exhibitor can act as 
judge in a class in which he is showing. 

£h] If there is any question as to the regularity 
of an entry, or the right of any animal or article to 
compete in any tot^ the judge or judges shall report 
same to the superintendent in charge for adjust- 
ment. 

(i) A faithful observance of all rules governing 
the exhibit will be required and when in doubt as 
to the application or meaning of a rule, the super- 
intendent in charge shall construe same by giving 
his opinion. This opinion, when required by either 
exhibitor or judge, must be reduced to writing and 
returned to the entry department with the award 
books. 

(j) In judging livestock, the decision of the 
official veterinarian and judge as to soundness 
shall be final. 

(k) The decision of the judges shall be final in 
all cases, except when mistake, fraud, misrepre- 
sentation, or collusion, not discovered at the time 
of the award, is alleged. In such cases, the fair 
manager shall make the final decision from which 
no appeal will lie. 

Statutory Authority G.S. 106-22; 106-530. 

.0330 PROTESTS AND APPEALS 

(a) All protests from a decision of a judge must 
be made by noon the day after the award has been 
made to: 

Fair Manager 

Western North Carolina Agricultural Center 

1301 Fanning Bridge Road 

Fletcher, North Carolina 28732 

An award is made when the notation of the deci- 



sion of the judge is entered |n the department 
award book. 

(b) All protests must be made in writing and be 
accompanied by five dollars ($5.00) which will be 
retained by the fair if the protest is not sustained. 



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PROPOSED RULES 



(c) No protest or appeal based upon the state- 
ment that the judge or judges are incompetent or 
have overlooked an animal or article will be 
considered by the fair manager. 

(d) All questions in disputed or differences not 
covered by these Rules shall be referred to the fair 
manager, whose decision shall be final. 

Statutory Authority G. S. 106-22; 106-530. 

.0331 PREMIUMS AND AWARDS 

(a) The following colors will be used in designating awards except for a horse show: 

(1) Championship or Sweepstakes Royal Purple 

(2) Reserve Champion Lavender 

(3) First Premium Blue 

(4) Second Premium Red 

£5} Third Premium White 

(6) Fourth Premium Pink 

(7j Fifth Premium Yellow 

(8) Sixth Premium Dark Green 

(9) Seventh Premium Light Green 

(10) Eighth Premium Tan 

(1 1) Ninth Premium Gray 

(12) Tenth Premium Light Blue 

(b) Where there are fewer animals or articles shown in lots than the number of premiums offered, the judge 
may, in his discretion, award a prize or prizes of such grade as the animal or article deserves. 

(c) In the livestock departments, where there is but a single exhibitor in a division (lot) of any class, the 
judge shall award but one premium; where only two exhibitors and only two animals are showing, two 
premiums may be awarded, but if there two exhibitors and three or more animals showing, three premiums 
may be awarded; where there are three or more exhibitors, all premiums may be awarded. Where this Rule 
conflicts with special rules in any department, the latter will govern. 

(d) No animal will be awarded a prize unless promptly brought into the show ring when its lot is called. 

(e) Special prizes will not be accepted for classes that do not conform to the regular classification of the 
department in which they belong, unless for urgent reasons satisfactory to the fair manager and to the 
superintendent of the department in which they are offered. 

(f) Specials must carry money prizes or articles of intrinsic value. Cups, meals or other articles offered 
as specials must be in the hands of the manager or the entry department on the opening day of the fair or 
awards will not be made. 

(g) Cash premiums awarded in the livestock departments will be paid by check made out to exhibitor and 
mailed to the post office address of exhibitor as given on the entry blank. 

(h) Premium money will be withheld in all instances when exhibits are removed from the grounds prior to 
the official time of release. 

(i) The Agricultural Center reserves the right to make such reductions in premiums of the fair as financial 
conditions at the time the premiums are payable may justify. 

Statutory Authority G.S 106-22; 106-530. 

.0332 AVAILABILITY OF FACILITIES for year-round use of the Agricultural 

Use of buildings and grounds shall be subject to Center grounds; 

the approval of the manager of the Western North £3] use by a reputable organization, group, 

Carolina Agricultural Center on the basis of the form or individual accepting by execution 

following: of a written contract the rules and rental 

(1) being in the public interest; schedules herein prescribed; 

(2) not in conflict with activities arranged (4) manager may limit the booking of similar 
and conducted as a part of the program events when deemed by him to be in the 



8:22 NORTH CAROLINA REGISTER February 15, 1994 2139 



PROPOSED RULES 



best interest of Western North Carolina 
Agricultural Center; and 
(5) at the option of the manager, an event 
may have first refusal on the same corre- 
sponding date in a subsequent year. 

Statutory Authority G.S. 106-22; 106-530. 

.0333 REHEARSALS: MOVE-IN AND 
MOVE-OUT PERIODS 

For setting up and closing down, the following 
shall apply: 

(1) Any horse shows under contract for more 
than one day shall have up to two days to 
move in and one day to move out. 

(2) Other livestock events shall have one day 
to move in and one day to move out. 
The move in and move out days are for 
the use of horse stalls and cattle barn. 
Other facilities which are under contract 
to be used by these events, may be used 
provided no additional costs are realized 
by the Agricultural Center. 

(3) One day horse shows and any other 
events, an additional rental fee will be 
charged in units of half-days, figured at 
one-half the stated rental rate per day for 
moving in and moving out. 

Statutory Authority G.S. 106-22; 106-530. 

.0334 LIABILITY 

Lessee shall be responsible for any damage to 
buildings, their fixtures and furnishings, and to all 
other buildings, land and structures on the Western 
North Carolina Agricultural Center grounds result- 
ing from and incident to contracted use. Lessee 
shall, when deemed advisable by the manager of 
the Agricultural Center, be required to furnish 
bond or procure public liability insurance (with a 
satisfactory company licensed to do business in the 
State of North Carolina), to relieve the Western 
North Carolina Agricultural Center, Division of 
Marketing, North Carolina Department of Agricul- 
ture and its officers and employees from any and 
all accounts, bills, damages, suits and claims jn 
any way arising out of the use of ffie building 
and/or other facilities on the Agricultural Center 
grounds by the lessee. 



of the building(s) by any organization, group, firm 
or individual approved by the manager of the 
Western North Carolina Agricultural Center, 
subject to the availability of the facilities, without 
payment of any fee. Such tentative reservation 
shall automatically expire on the 10th day follow- 
ing the date upon which the tentative reservation 
was made. 

Cb) If the date for which a tentative reservation 
was made is sought to be reserved by any other 
qualified organization, group, firm or individual, 
then the person(s) making the tentative reservation 
shall be allowed 48 hours after due notice in which 
to execute a written contract for use of the facili- 
ties and to pay the required cash deposit which 
must accompany such a contract. 

(c) In any event, a written contract must be 
executed not less than 24 hours prior to the sched- 
uled start of any and all performance or exhibition 
events, at which time lessee shall make a cash 
deposit of not less than the specified "guaranteed 
minimum." 

(d) Lessee shall be required to make full settle- 
ment of JO percent of the gross revenue if greater 
than "guaranteed minimum." along with payment 
for any special items or services provided by the 
Agricultural Center, within 24 hours after the end 
of the event for which use of the facilities was 
contracted. The manager of the Western North 
Carolina Agricultural Center may extend the 



Statutory Authority G.S. 106-22; 106-530. 

.0335 RESERVATIONS AND PAYMENT 
OF CHARGES 

(a) A tentative reservation may be made for use 



period for final and full settlement if, in his judg- 
ment, additional time is required to determine the 
accurate gross revenue. 

Statutory Authority G.S. 106-22; 106-530. 

.0336 CONCESSIONS 

The Western North Carolina Agricultural Center 
reserves the right to operate (or lease) any and all 
concession stands and sales within the arena 
building and elsewhere on the Agricultural Center 
grounds and lessee shall have no claim to any 
revenue from any such concession sales. Lessee 
desiring to sell any program, books, novelties, 
records, tapes, tee shirts or other merchandise 
connected with the event for which the facility was 
contracted will contact the complex manager and 
arrange to inventory all items in prior to show 
time and settle with the complex manager at the 
end of the event. All items are subject to approval 
of the complex manager. The Western North 
Carolina Agricultural Center Manager reserves the 
right to waive the above it is in the best interest of 
the Western North Carolina Agricultural Center 
and the contract with the event lessee. 



2140 



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PROPOSED RULES 



Statutory Authority G.S. 106-22; 106-530. 

.0337 ALCOHOLIC BEVERAGES 

(a) A person shall not possess any alcoholic 
beverage on Agricultural Center property except as 
permitted by the Agricultural Center Manager and 
in compliance with the rules of the North Carolina 
Alcoholic Beverage Control Commission. 

fb) Alcoholic beverages shall not be sold during 
the annual North Carolina Mountain State Fair nor 
at any other event that the Western North Carolina 
Agricultural Center Manager deems to be in the 
best interest of the Agricultural Center. 

Statutory Authority G. S. 106-22; 106-530. 

.0338 CONDITIONS FOR RENTAL OF 
FACILITIES 

For purposes of this Chapter, "day" means the 
time used between 8:00 a.m. and 12:00 midnight 
or any fraction thereof. Time prior to or after the 
day shall be charged at a rate of fifty dollars 
($50.00) per hour plus attending staffing and 
service fees, unless otherwise agreed by the Agri- 
cultural Center management and the user prior to 
the event. All users are subject to the rules of this 
Chapter and the terms of the lease agreement. 

Statutory Authority G.S. 106-22; 106-530. 

.0339 RENTAL RATES: FEES: AND 
PREMIUM BOOKS 

(a) The manager of the Western North Carolina 
Agricultural Center shall annually publish: 

(1) a schedule of fees and other charges 
governing rental rates for Wester North 
Carolina Agricultural Center properties 
and services; and 

(2) for the North Carolina Mountain State 
Fair, a premium book for exhibits and 
horse shows governing the awarding of 
cash prizes and other awards. 

(b) The Board of Agriculture shall give notice of 
any hearing at which fees and other charges 
governing rental rates for Western North Carolina 
Agricultural Center properties and services are 
approved pursuant to the procedures outlined m 
G.S. 150B-12. 

(c) Copies of fee schedules and premium books 
shall be maintained in the office of the Western 
North Carolina Agricultural Center Manager and 
made available to the public upon request. 



CHAPTER 48 - PLANT INDUSTRY 

SUBCHAPTER 48B - FERTILIZER 

SECTION .0100 - FERTILIZER 
STANDARDS 

.0113 REGISTRATION OF FERTILIZER- 
PESTICIDE MIXTURES 

(a) Fertilizer-pesticide mixtures may be regis- 
tered for sale and use with the Plant Industry 
Division and Food and Drug Protection Division 
provided: 

(1) Both the pesticide and the fertilizer 
grades are approved for use and sale in 
North Carolina; 

(2) The mixture is approved by the Plant 
Industry Division; and 

(3) The directions for use are printed on 
the label. 

(b) Fertilizers-pesticides may be mixed for direct 
application at the farmer's request without register- 
ing the mixture provided as follows: 

(1) The mixing of the pesticide with fertil- 
izer is not prohibited by the pesticide 
label and the fertilizer contains a mini- 
mum of 20 percent primary plant nutri- 
ents, Nitrogen (N), Available Pho s pho 
ric Acid Phosphate (P 2 O s ), and Soluble 
Potash (K,0). 

(2) The product is delivered directly to the 
point of application and not stored. 

(3) The consumer shall be issued an in- 
voice showing the analysis of the fertil- 
izer and the trade name of the pesticide 
as well as the net content of each . 

(c) Any fertilizer-pesticide mixture sold in bulk 
shall be covered with a tarpaulin or other covering 
to prevent spillage or dusting while in transport. 

(d) Any fertilizer-pesticide mixture sold in bags 
shall be in multi-wall bags which will prevent 
dusting, spillage, or otherwise losing content of the 
bag. 

(e) Nothing in this Regulation Rule shall prohib- 
it the Board of Agriculture from refusing to regis- 
ter and/or or approve any fertilizer-pesticide 
mixture or denying a fanner's request for a fertil- 
izer-pesticide mixture for direct application. 

Statutory Authority G S. 106-673. 



Statutory Authority G.S. 106-22; 106-530. 



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2141 



PROPOSED RULES 



.0121 APPLICATION FOR REGISTRATION OF FERTILIZERS 

(a) Each application for registration of any fertilizer shall include the: 

(1) net weight; 

(2) brand; 

(3) grade; 

(4) name and address of the person guaranteeing registration; and 

(5) sources from which nitrogen, phosphoric acid phosphate , and potash are derived in mixed 
fertilizers. 

(b) Each application for registration of any fertilizer in addition to the general information contained in 
Paragraph (a) of this Rule, shall include a guaranteed analysis showing the percentages of plant food in the 
following order and form: 

(1) tobacco fertilizers: 

(A) total nitrogen (N) X Percent; 
[breakdown of nitrogen (N) is optional] 

(B) available phosphoric acid phosphate (P 2 O s ) X Percent; 

(C) soluble potash (K 2 0) X Percent; 

(D) chlorine (maximum) X Percent; 

(2) fertilizer materials: 

(A) total nitrogen (N) X Percent; 

(B) available phosphoric acid phosphate (P 2 O s ) X Percent; 

(C) soluble potash (K 2 0) X Percent; 

(3) specialty fertilizers, manures and fortified mulch: 

(A) total nitrogen (N) X Percent; 

(B) available pho s phoric acid phosphate (P 2 C\) X Percent; 

(C) soluble potash (K 2 0) X Percent; 

(4) organic fertilizers: 

(A) total nitrogen IN) (see 2 NCAC 48B .0122) X Percent; 

(B) available phosphoric acid phosphate IPjOj) X Percent; 

(C) soluble potash U^O) X Percent. 

(c) Immediately following the guarantees for primary plant nutrients, the following secondary plant 
nutrients, if used, shall be listed on the application and guaranteed by percentage of each in elemental form: 

(1) calcium (Ca); 

(2) magnesium (Mg) (see 2 NCAC 48B .0132); 

(3) sulfur (S); 

(4) boron (B); 

(5) chlorine (CI); 

(6) cobalt (Co); 

(7) copper (Cu); 

(8) iron (Fe); 

(9) manganese (Mn) (see 2 NCAC 48B .0132); 

(10) molybdenum (Mo); 

(11) sodium (Na); and 

(12) zinc (Zn). 

Sources of these elements and proof of availability shall be provided to the Commissioner upon request. 

(d) A person shall not make any guarantee or claim for a secondary or minor plant nutrient not listed in 
Paragraph (c) of this Rule. 

(e) A person shall express potential acidity or basicity as equivalent pounds per ton of calcium carbonate, 
if acid forming or nonacid forming potential is guaranteed. 

(f) Where no determination of available phosphoric acid phosphate for organic phosphates is made, total 
pho s phoric acid phosphate shall be guaranteed, except as provided in Paragraph (g) of this Rule. 

(g) Where unacidulated mineral phosphates or basic slag is used, both total and available phosphoric acid 
phosphate , as well as degree of fineness, shall be guaranteed. 



Statutory Authority- G.S. 106-660(a); 106-673. 



2142 8:22 NORTH CAROLINA REGISTER February 15, 1994 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-2L2 that DHR/Secretary's Office intends to 
adopt rules cited as 10 NCAC IN .0001 - .0008. 

1 he proposed effective date of this action is May 
1, 1994. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): Written demand for a public hearing may 
be directed to Jack Jenkins, General Counsel, 
N.C. Department of Human Resources, 101 Blair 
Drive, Raleigh, NC 27603 on or before March 8, 
1994. 

Jxeason for Proposed Action: 45 CFR 84. 7, 
Implementing the Section 504 of the Rehabilitation 
Act of 1973 requires adoption of grievance proce- 
dures to resolve complaints. 

Csomment Procedures: Written comments may be 
directed to Jack Jenkins, General Counsel, N. C 
Department of Human Resources, 101 Blair Drive, 
Raleigh, NC 27603 on or before March 22, 1994. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IN - SECTION 504 
GRIEVANCE PROCEDURES 

.0001 APPLICABILITY AND SCOPE 

This Subchapter provides for the prompt and 
equitable resolution of complaints against any 
division within the Department of Human Resourc- 
es alleging any action prohibited by the U.S. 
Department of Justice regulations implementing 
Section 504 of the Rehabilitation Act of 1973, 45 
CFR Part 84. 

Authority 45 C.F.R. 84. 7. 

.0002 COMPLAINTS 

(a) A complaint shall be filed in writing, contain 
the name and address of the person filing it^ and 
briefly describe the alleged violation of 45 CFR 
Part 84. If the complainant requires secretarial 
assistance in preparing the complaint due to his 
disability, the Division Section 504 Coordinator 
shall provide such assistance upon request of the 



complainant. 

(b) A complaint shall be filed with the Division 
Section 504 Coordinator within 60 days after the 
complainant becomes aware of the alleged viola- 
tion. 

Authority 45 C.F.R. 84. 7. 

.0003 INVESTIGATION 

An investigation of the allegations of the com- 
plaint shall be conducted by a Section Chief 
designated by the Division Section 504 Coordina- 
tor. The investigation shall afford all interested 
persons and their representatives, if any, an oppor- 
tunity to submit evidence relevant to the com- 
plaint. 

Authority 45 C.F.R. 84.7. 

.0004 WRITTEN DETERMINATION 

A written determination as to the validity of the 
complaint and a description of the resolution, if 
any, shall be issued by the Division Section 504 
Coordinator and a copy forwarded to the com- 
plainant no later than 30 days after the filing of the 
complaint. 

Authority 45 C.F.R. 84.7. 

.0005 RECONSIDERATION 

(a) The complainant may request a reconsidera- 
tion of the determination as to the validity of the 
complaint in instances where he js dissatisfied with 
the resolution. The request for reconsideration 
shall be made to the Division Director within 30 
days of the issuance of the determination of validi- 

(b) A written determination to the request for 
reconsideration shall be issued by the Division 
Director or his designee, and copy forwarded to 
the complainant and Section 504 Coordinator 
within 30 days after the filing of a request for 
reconsideration. 

Authority 45 C.F.R. 84.7. 



.0006 RECORDS 

The Division Section 



504 Coordinator shall 



maintain the files and records of the Division 
relating to the complaints filed, written determina- 
tions issued, and any reconsiderations requested or 
issued. 



Authority 45 C.F.R. 84.7. 



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February 15, 1994 



2143 



PROPOSED RULES 



.0007 OTHER REMEDIES 

The right of a person to a prompt and equitable 
resolution of the complaint filed under this Sub- 
chapter shall not be impaired by the person's 
pursuit of other remedies such as the filing of a 
Section 504 complaint with the responsible federal 
department or agency. Use of the procedures of 
this Subchapter is not a prerequisite for the pursuit 
of other remedies. 

Authority 45 C.ER. 84.7. 

.0008 CONSTRUCTION 

This Subchapter shall be construed to protect the 
substantive rights of interested persons, to meet 
appropriate due process standards, and to assure 
that the Department and the Divisions comply with 
Section 504 of the Rehabilitation Act of 1973 and 
implementing regulations. 

Authority 45 C.ER. 84. 7. 

TITLE 11 - DEPARTMENT 
OF INSURANCE 

iSotice is hereby given in accordance with G.S. 
150B-2I.2 that the N.C. Department of Insurance 
intends to amend rules cited as 11 NCAC 10 . 1201 
- .1202. .1206; repeal rule cited as 11 NCAC 10 
.0308; and adopt rules cited as 11 NCAC 10 
. 1303, . 1403. 

1 he proposed effective date of this action is May 
1, 1994. 

I he public hearing will be conducted at 10:00 
a.m. on March 3, 1994 at the Dobbs Building, 3rd 
Floor Hearing Room, 430 N. Salisbury Street, 
Raleigh, N.C. 27611. 

ixeason for Proposed Action: 

II NCAC 10 .1201 - Requires insurance compa- 
nies assign specific form numbers to each form 
being filed. 

11 NCAC 10 .1202 - Reflects proper identification 
of Bureaus. 

11 NCAC 10 .1206 - Updates language according 
to statutory changes. 

11 NCAC 10 .0308 - Repealed due to statutory 
changes. 

11 NCAC 10 .1303 & .1403 - Established guide- 
lines for loss cost rate filings. 



Ksomment Procedures: Written comments may be 
sent to Charles Swindell at P.O. Box 26387, 
Raleigh, N.C. 27611. Oral presentations may be 
made at the public hearing. Anyone having ques- 
tions should call Charles Swindell at (919) 
733-3368 or Ellen Sprenkel at (919) 733-4529. 

CHAPTER 10 - PROPERTY AND 
CASUALTY DIVISION 

SECTION .0300 - RULES AND 
INTERPRETATIONS 

.0308 PREPAID LEGAL EXPENSE 
PROVISIONS 

Any program — off e ring prepaid — legal — e xp e ns e 
oonstituting th e off e ring of inourano e or offered by 
a oompany engag e d in the insuranc e business shall 
hav e the approval of the North Carolina Stato Bar 
b e fore it shall b e consid e r e d by th e commissioner 
for approval. 

Statutory Authority G.S. 58-9; 84-23.1. 

SECTION .1200 - FORMS FILINGS 

.1201 GENERAL REQUIREMENTS 

(a) — Except inland marin e insurance that is not 
g e n e rally written according to manual rates and 
rating plans, and with the e xc e ption of fidelity, 
sur e ty and guaranty bonds which ar e written in 
accordanc e with a statut e or at the dir e ction of the 
in s ur e d, all form s int e nd e d for use in this stat e 
shall b e filed with th e commission e r for approval 
prior to th e ir us e . 

(a) f&) — Form(s) Insurers shall submit form 
filings must b e submitt e d s e parately and under 
independent cover separate from Rates and Rules 
rate and rule filings.^ which shall be made under 1 1 
NCAC K) .1100 . Th e r e quirem e nts of this Rule 
ar e applicabl e to form(s) filings only. — Rat es and 
Rul e s filings are addr e ss e d in Section .1 100. 

(b) Each insurer shall display a unique identifier 
on each form filed that differentiates that form 
from all other forms filed with the Commissioner 
by that insurer. 

(c) Applications or declarations pages that are 
used with policy forms shall be submitted to and 
approved by the Commissioner. 

Statutory Authority G.S. 58-2-40; 58-3-150; 
58-6-5; 58-36-55; 58-37-35; 58-41-50; 58-44-15; 
58-45-45; 58-46-55. 



2144 



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PROPOSED RULES 



.1202 REFERENCE FILINGS 

With the exception of Flood Insurance written in 
accordance with Federal Emergency Management 
Agency (FEMA) requirements, form(s) filing form 
filings by reference are not permitted. Individual 
companies adopting a form(o) If an insurer adopts 
a form that has been promulgated by a licensed 
bureau or licensed rating organization advisory 
organizations and licensed joint underwriting 
organizations of which said company the insurer is 
a member or subscriber^ the adoption of that form 
is NOT not deemed to be a reference filing. 

Statutory Authority G.S. 58-2-40; 58-3-150; 
58-36-55; 58-37-35; 58-41-50; 58-44-15; 
58-45-45; 58-46-55. 

.1206 COMMERCIAL LINES 

All licensed insurance companies, licensed rating 
bureaus, licensed rating organizations,, or and any 
other licensed entity filing forms for non e s sential 
itnes — (as — defined — m — 58 131.36 — &f — 58 4 72) 



58, Articles 40 and 



coverages governed by G.S. 
4J. shall: 

(1) use the Letter of Transmittal as 
prescribed in Chapter 10, Rule .1203 1 1 
NCAC 10 .1203 ; 

(2) complete the Questionnaire as prescribed 
in Chapter 10, Rule .1207 11 NCAC H) 
.1207 : 

{3} be — Hi — compliance — wrtb — the — other 

provision s of thi s Rul e : 

£3} {4) when if the filer is filing a 
modification to an existing form, it will 
provide a "side-by-side" comparison of 
the old and proposed form(s) existing and 
modified forms and explain all 
broadenings and restrictions of coverage^ 

{£} sueh other information as the 

commissioner may require. 

Statutory Authority G.S. 58-2-40; 58-3-150; 
58-41-50. 

SECTION .1300 - NORTH CAROLTNA 
JOINT UNDERWRITING ASSOCIATION 



.1303 LOSS COST RATE FILINGS 

If the North Carolina Rate Bureau or 



the 



Insurance Services Office, Inc 
rate filing that requires the 



makes a loss cost 
N.C. Joint 



Underwriting Association to make a filing in order 
to have final rates, the Association must make its 
filing within 60 days after the loss cost filing is 
approved by the Commissioner. 



Statutory Authority G.S. 58-2-40; 58-46-55. 

SECTION .1400 - NORTH CAROLINA 

INSURANCE UNDERWRITING 

ASSOCIATION 

.1403 LOSS COST RATE FILINGS 

If the North Carolina Rate Bureau or the 
Insurance Services Office, Inc., makes a loss cost 
rate filing that requires the N.C. Insurance 
Underwriting Association to make a filing in order 
to have final rates, the Association must make its 
filing within 60 days after the loss cost filing is 
approved by the Commissioner. 

Statutory Authority G.S. 58-2-40; 58-45-45. 

I|c)ic]ic3|c](c3ic3|c3ic3ieiic)ic}icjic3{e3jc3ic>ie)ic 

Notice is hereby given in accordance with G.S. 

150B-21.2 that the N.C. Department of Insurance 

intends to repeal rules cited as 11 NCAC 11 A 
.0601 - .0609. 

1 he proposed effective date of this action is May 
1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on March 3, 1994 at the Dobbs Building, 3rd 
Floor Hearing Room, 430 N. Salisbury Street, 
Raleigh, N.C. 27611. 

iveason for Proposed Action: This Section has 
been replaced by statutory provisions. 

(comment Procedures: Written comments may be 
sent to Ray Martinez at P.O. Box 26387, Raleigh, 
N. C 2761 1 . Oral presentations may be made at 
the public hearing. Anyone having questions 
should call Ray Martinez at (919) 733-5633 or 
Ellen Sprenkel at (919) 733-4529. 

CHAPTER 11 - FTNANCIAL EVALUATION 
DIVISION 

SUBCHAPTER 11A - GENERAL 
PROVISIONS 

SECTION .0600 - REINSURANCE 
INTERMEDIARIES 

.0601 DEFINITIONS 



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2145 



PROPOSED RULES 



As used in this Section: 

ft) "Actuary" means a person who meets the 

standards of a qualified actuary, as speci 
fied in the National Association of Insur 
ance Commissioners Annual Statement 
Instructions, as amended or clarified by 
rule or order of the Commissioner, for 
the type of insurer for which an intcrmc 
diary is establishing lo ss reserves. 

f2) "Broker" means any person, other than 

an officer or employee of a ceding insur 
ef; — wfre — solicits, — negotiate s , — or places 
reinsurance cessions or retroce ss ions on 
behalf of a ceding insurer without the 
authority or power to bind rein s urance on 
behalf of the ceding insurer. 

f3) "Commissioner" means th e Commi ss ion 

er of Insurance of North Carolina and 
includes — h+s — authorized — deputies — and 
employees. 

f4) "Controlling person" mean s any per s on 

who directly or indirectly has the power 
to direct or cause — te — be directed the 
management, control, or activities of an 
intermediary. 

f§) "Intermediary" — ha s the same meaning 

contained in G.S. 58 2 225(a) and in 
eludes a broker or a manager. 

f6) "Manager" means any person who ha s 

authority to bind or manages all or part 
of the a s sumed reinsurance bu s ine ss of a 
reinsurer (including the management of a 
separate division, department, or under 
writing office) and acts as an agent for 
the rein s urer. — The following persons arc 
not manager s , with respect to a reinsurer: 

fa} An employee of a reinsurer; 

(b) A U.S. manager of the United State s 

branch of an alien reinsurer; 

fe) An underwriting manager that, pursuant 

to contract, manages all the reinsurance 
operations — ef- — a — reinsurer, — is — under 
common — control — wrth — the — reinsurer 
under Article — 19 of General Statute 
Chapter 58, and whose compensation is 
not based on the volume of premium s 
written; 

fd) The manager of a group, association, 

pool, or organization of insurers that 
engage in joint underwriting or joint 
reinsurance — and — that — afe — subject — te 
examination by the insurance regulator 
of the state in — which — the — manager's 
principal busine ss office i s located. 
f7) "Per s on" include s an individual, aggrega 



tion of individuals, corporation, associa 
tion, or partnership. 

f8) "Producer" means an in s urance agent or 

insurance broker licensed under Article 
33 of General Statute Chapter 58 or an 
intermediary licensed under this Section. 

f9) "Qualified — Ur& — financial — institution" 

means a bank that: 

(a) I s organized, or in the case of a U.S. 

office of a foreign banking organization 
i s licensed, under the law3 of the Unit 
ed States or any state; 

fb) I s regulated, supervised, and examined 

by federal or state authorities having 
regulatory — authority — ©vef — banks — and 
trust companies; and 

fe) Ha s been determined by the Securities 

Valuation Office of the National Asso 
ciation of Insurance Commissioners to 
meet its standards of financial condition 
and s tanding in order to issue letter s of 
credit. 

f+0) "Rein s urer" mean s any licensed in s urer 

that is authorized to assume reinsurance. 

Statutory Authority G. S. 58-2-40; 58-2-225. 

.0602 LICENSURE 

(a) No person shall act as a broker in this State 
if the broker maintains an office either directly, as 
a member or employee of a non corporate entity, 
or as an officer, director, or employee of a eorpo 
ration: 

ft) In this State, unles s the broker i s a 

producer in this State; or 

f2) In another state, unle ss the broker i s a 

producer in this State or another state 
having a law or rule substantially simi 
lar to this Section or unless the broker 
i s licen s ed under this Section as a non 
resident intermediary. 
fb) — No per s on s hall act as a manager: 

ft) For a rein s urer domiciled in this State, 

unle ss the manager i s a producer in this 
State; 

f3) In this State, if the manager maintains 

an — office — directly, — as — a — member — ef 
employee of a non corporate entity, or 
as an officer, director or employe e of n 
corporation in this State, — unless the 
manager is a producer in thi s State; 

0) In another s tate for a foreign insurer, 

unless the manager is a producer in this 
State or another state having a law or 
rule s ub s tantially s imilar to thi s Section. 



2146 



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PROPOSED RULES 



or the manager is licensed in thi s State 

as a nonresident intermediary. 

{ej — Every manager subject to Paragraph (b) of 

this Rule shall demonstrate to the Commissioner 

that he has evidence of financial responsibility in 

the form of fidelity bonds or liability insurance to 

cover the manager's contractual obligations. M 

any manager can not demon s trate this evidence, 
the Commissioner shall require the manager to: 

{4-) Maintain a separate fidelity bond in 

favor of each reinsurer represented in 
an amount that will cover those obliga 
tions and which bond is issued by an 
authorized insurer; or 



and 



l iabil 



O) Maintain an error s and omi ss ion s liabil 

ity insurance policy in an amount that 
will cover those obligations and which 
policy i s issued by a licensed insurer. 
(d) The Commissioner shall issue an intermedi 
ary license to any person who ha s complied with 
the requirements of this Section. — A license i ss ued 
to a non corporate entity authorizes all of the 
member s of the entity and any designated employ 
ccs to act as intermediaries under the license, and 
those persons shall be named in the application and 
any supplements. — A license i s sued to a corpora 
tion authorizes all of the officer s and any designat 
cd employees and directors of the corporation to 
act as intermediaries on behalf of the corporation, 
and those persons shall be named in the application 
and any supplements. 

(c) If an applicant for an intermediary license is 
a nonre s ident, the applicant, before receiving a 
license, shall designate the Commissioner as his 
agent for service of legal process; and s hall furni s h 
the Commissioner with the name and address of a 
resident of this State upon whom notices or orders 
of the Commissioner or process affecting the 

nonresident intermediary may be served. The 

licensee shall notify the Commissioner in writing 
of every change in his designated agent for service 
of process — within — five business days after the 
change; and the change shall not become effective 
until acknowledged by the Commissioner. 

{£) — The Commissioner shall refu s e to i s sue an 
intermediary' license if: 

fB the applicant, — anyone — named on the 

application, or any member, principal, 
officer, or director of the applicant, is, 
based on his or her business experience 
or business reputation, not trustworthy; 
&f 

(3) any controlling person of the applicant 

i s not, ba s ed on that person's business 
experience — of — business — reputation. 



tru s tworthy to act a 3 an intermediary; 

Of 

0j any of the person s in Subparagraphs ( 1 ) 

and (2) of this — Paragraph has given 

cau se for revocation or s uspension of 

the license or has failed to comply with 

any prerequisite for the issuance of the 

license. 

Upon — written — request, — the Commissioner shall 

furnish a written summary of the reasons under 

this Paragraph for refusal to issue a licen s e. 

{g) — Attorneys at law licensed by this State arc 
exempt from this Rule when they arc acting in 
their professional capacities. 

Statutory Authority G.S. 58-2-40; 58-2-225. 

.0603 REQUIRED CONTRACT 
PROVISIONS - BROKERS 

Tran s actions between a broker and the insurer it 
represents a s a broker shall only be entered into 
pursuant to a written authorization, s pecifying the 
responsibilitie s of each party. — The authorization 
shall include provi s ion s to the effect that: 

{4-) The insurer may terminate the broker's 

authority at any time. 

{3} The broker will render accounts to th e 

insurer that accurately detail all material 
transactions, including information neces - 
s ary to support all commissions, charges, 
and other fees received by or owing to 
the broker; and will remit all fund s due 
to the in s urer within 30 days after receipt 
by the broker. 

{$) AH — funds — collected — fef — the — insurer's 

account will be held by the broker in a 
fiduciary capacity — in a qualified — fetSr 
financial in s titution. 

{A) The broker will comply with this Rule. 

(§) The broker will comply with the written 

standard s established by the insurer for 
the cession or retrocession of all ri s ks. 

{€) The broker will di s clo s e to the insurer 

any — relationship with any reinsurer to 
which bu s ine s s will be ceded or retroced 



edr 

f?) The broker will — annually provide the 

insurer with an audited s tatement of the 
broker' s financial condition, which s tate - 
ment will be prepared by an independent 
certified public accountant. 

{&) The in s urer will have access and the right 

to copy and audit all accounts and re 
cord s maintained by the broker related to 
its business, in a form u s able by the 



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PROPOSED RULES 



insurer. 

{9} For at least 10 years after the expiration 

of each contract of reinsurance transacted 
by the broker, the broker will keep a 
complete — record — fef — each — transaction 
showing: 

{&) The type of contract, limits, undcrwrit 

ing restrictions, — classes or risks and 
territory; 

fb} Period of coverage, including effective 

and expiration dates, cancellation provi 
s ion s and notice required of cancella 
Hon , 

{e) Reporting and s ettlement requirements 

of balances; 

^4j Rate or rate s u s ed to compute the rein 

surance premium; 

(e) Names — and — addresses — of- — assuming 

reinsurers; 

ff-) Rates of all reinsurance commissions, 

including — the — commissions — ©a — any 
retrocession handled by the broker; 
tg-) Related correspondence and memoran 

dftt 

{kj Proof of placement; 

fi-) Details regarding retrocessions handled 

by the broker, including the identity of 
retroce s sionaires and percentage of each 
contract assumed or ceded; 

ij) Financial records, including premium 

and loss accounts; and 

$t) When the broker procures a reinsurance 

contract on behalf of a licensed ceding 
insurer: 

{+) Directly from any assuming reinsurer, 

written evidence that the assuming 
rein s urer has agreed to assume the 
risk; or 
{«} — If placed through a representative of 
the assuming reinsur e r, other than an 
employee, written evidence that the 
reinsurer has delegated binding au 
thority to the representative. 

Statutory Authority G. S. 58-2-40; 58-2-225. 

.0604 DUTIES OF INSURERS USING 
SERVICES OF BROKERS 

{&) — An insurer shall not engage the services of 
any person to act a s a broker on its behalf unless 
th e person is licensed under 1 1 NCAC 1 1 A .0602. 

fb) — An insurer shall not employ an individual 
who is employed by a broker with which it trans 
act s bu s iness, unless the broker is under common 
control with the insurer under Article 19 of Gencr 



al Statute Chapter 58. 

Statutory Authority G.S. 58-2-40; 58-2-225. 

.0605 REQUIRED CONTRACT 

PROVISIONS - MANAGERS 

Transactions between a manager and the reinsur 
cr it represents as a manager s hall only be entered 
into pursuant to a written contract, specifying the 
responsibilities — of each — party, — which — shall — be 
approved by the reinsurer's board of directors. — At 
lea s t 30 days before the reinsurer assume s or cede s 
bu s ines s through the manager, a certified copy of 
the — approved — contract — shall — be — fried — with — the 
Commi ss ioner for approval. — The contract shall 
include provisions to the effect that: 

<-B The reinsurer may terminate the contract 

fef — cause — upon — written — notice — to — the 
manager. — The rein s urer may immediate 
ly suspend the authority of the manager 
to assume or cede bu s iness during the 
pendency of any di s pute regarding th e 
cause for termination. 

{3) The manager will render accounts to the 

reinsurer accurately detailing all material 
transactions, including information neces 
sary to support all commissions, charge s , 
and other fees received by or owing to 
the manager; and will remit all funds due 
und e r the contract to the reinsurer at lea s t 
once every month. 

t^r) All funds collected for the reinsurer's 

account will be held by the manager in a 
fiduciary capacity — in a qualified U.S. 
financial institution. — The manager may 
retain no more than three month s ' e s ti 
mated claims payments and allocated loss 
adjustment expenses. — The manager shall 
maintain a separate bank account for each 
rein s urer that it represents. 

f4) For at lea s t 10 year s after the expiration 

of each contract of rein s urance transacted 
by the manager, the manager will keep a 
complete — record — fef — eaeh — tran s action 
showing: 
{et) The type of contract, limits, underwrit - 
ing re s triction s , — classes — or risks and 
territory; 

fb} Period of coverage, including effective 

and expiration dates, cancellation provi 
s ion s and notice required of cancella 
tion, — and — disposition — of- — outstanding 
reserves on covered risk s ; 

(e) Reporting and settlement requirements 

of balance s ; 



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PROPOSED RULES 



) 






<&- 






Rate used to compute the reinsurance 

premium; 

Names and addresses of reinsurers; 

Rates of all reinsurance commissions, 

including — the — commission s — e« — any 

retrocessions handled by the manager; 

Related correspondence and memoran 

dat 

Proof of placement; 

Details regarding retroce s sion s handled 

by the manager, as permitted by — 14 

NCAC 11A .0607, including the identi 

ty of retrocessionaires and percentage 

of each contract assumed or ceded; 

Financial — record s , — including but — net 

limited to, premium and loss accounts; 



e- 



{fe) When the manager places a rein s urance 

contract on behalf of a ceding insurer: 

£) Directly from any assuming reinsurer, 

written evidence that the a ss uming 
reinsurer has agreed to assume the 
ri s k; or 
{ii) — If placed through a representative of 
the assuming rein s urer, other than an 
employee, written evidence that the 
reinsurer has delegated binding au 
thority to the representative. 

{§) The reinsurer will have access and the 

right to copy all accounts and records 
maintained by the manager related to its 
business in a form u s able by the reinsur 
err 

{6) The contract cannot be assigned in whole 

or in part by the manager. 

{7) The manager will comply with the writ 

tee — underwriting — and — rating — standards 
established by the insurer for the accep 
tance, rejection, or cession of all risks. 

{8) The rates, terms, and purposes of com 

mi s sions, charges, and other fee s that the 
manager may levy again s t the reinsurer 
shall be set forth. 



m- 



4f-tte 



&■ 



> 



ic contract permits the manager to 
s ettle claims on behalf of the reinsurer: 
— All claims will be reported to the rein 
surer in a timely manner; 

{b) A copy of the claim file will be sent to 

the reinsurer at its reque s t or a s s oon a s 
it becomes known that the claim: 

{+) Has the potential to exceed an amount 

set by the reinsurer and approved by 
the Commissioner; 
{tt) — Involves a coverage di s pute; 
{tit) — May exceed — the — manager's — claims 



settlement authority; 
{tv) — Is open for more than s ix months; or 

{v} I s clo s ed by payment of an amount set 

by the reinsurer and approved by the 
Commissioner. 

{e) All claim file s will be the joint property 

of the reinsurer and manager. — Howcv 
cr, upon an order of liquidation of the 
reinsurer the files shall become the sole 
property of the reinsurer or ita estate; 
the — manager — shaH — have — reasonable 
access to and the right to copy the files 
on a timely basis; 

{4) Any settlement authority granted to the 

manager may be terminated for cause 
upon the rein s urer' s written notice to 
the manager or upon the termination of 
the contract. — The reinsurer may s us 
pend the settlement authority during the 
pendency of the dispute regarding the 
cause of termination. 

{40} If the contract provide s for a s haring of 

interim profits by the manager, the inter 
im profits will not be paid until one year 
after the end of each underwriting period 
for property bu s ine ss and five years after 
the end of each underwriting period for 
casualty bu s iness and not until the adc 
quacy of reserve s on remaining claim s 
has been verified pursuant to 1 1 NCAC 
11A .0607. 

{44-) The manager will annually provide the 

reinsurer with an audited statement of its 
financial condition prepared by an indc 
pendent certified public accountant. 

{44) The rein s urer s hall at lea s t semi annually 

conduct an on site review of the under 
writing and claim s proce ss ing operation s 
of the manager. 

{44) The manager will disclose to the reinsur 

cr any relationship it has with any insurer 
before ceding or assuming any business 
with the insurer pursuant to this contract. 

{44) Within the scope of its actual or apparent 

authority the acts of the manager shall be 
deemed to be the act s of the reinsurer on 
whose behalf it is acting. 



Statutory Authority G. S. 58-2-40; 58-2-225. 

.0606 PROHIBITED ACTS 

A manager s hall not: 

{4) Cede retrocessions on behalf of the rein 

surer, except that the manager may cede 
facultative — retrocessions — pursuant — te 



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2149 



PROPOSED RULES 






W- 



m- 



(&- 



fh- 



obligatory facultative agreement s if the 
contract with the reinsurer contains rein 
surance underwriting guidelines for the 
retrocessions. — The guideline s s hall in 
elude a list of reinsurers with which the 
automatic agreements arc in effect, and 
for each — reinsurer, — the coverages and 
amounts — er- — percentages — that — may — be 
reinsured, and commission schedule s . 
Commit the reinsurer to participate in 
reinsurance syndicates. 
Appoint any producer without assuring 
that the producer is duly licensed to 
transact the type of reinsurance for which 
he i s appointed. 

Without prior approval of the reinsurer, 
pay or commit the reinsurer to pay a 
claim s ettlement with a retrocessionaire, 
without prior approval of the reinsurer. 
If prior approval is given, a report mu s t 
be promptly forwarded to the reinsurer. 

Collect etny payment from a 

retrocessionaire or commit the reinsurer 

te any — claim settlement with a 

retrocessionair e , — without prior approval 

of the reinsurer. If prior approval is 

given, — a — report — must — be — promptly 
forwarded to the reinsurer. 
Jointly — employ — em — individual — whe — is 
employed — by the reinsurer unless the 
manager is under common control with 
the reinsurer under Article 19 of General 
Statute Chapter 58. 
Appoint a sub manager. 



Statutory Authority G.S. 58-2-40; 58-2-225. 

.0607 DUTIES OF REINSURERS USING 
SERVICES OF A MANAGER 

(e) — A reinsurer s hall not engage the services of 
any person to act as a manager on its behalf unless 
the per s on is licensed under 1 1 NCAC 1 1 A .0602. 

(b) — If a manager establishe s lo ss reserve s , the 
reinsurer s hall annually obtain the opinion of an 
actuary atte s ting to the adequacy of los s reserves 
established for losses incurred and outstanding on 
business produced by the manager. — This opinion 
s hall be in addition to any other required loss 
reserve certification. 

fe) Binding authority — for all — retroccssional 

contract s or participation in rein s urance syndicates 
s hall be given to an officer of the reinsurer who is 
not affiliated with the manager. 

fd-) — Within 30 day s after termination of a con 
tract with a manager, the reinsurer s hall provide 



written — notification — of the — t e rmination — te — the 
Commissioner. 

{ej — A rein s ur e r shall not appoint to its board of 
director s any officer, director, employee, control 
ling per s on, or subproduccr of its manager. — This 
Rule doc s not apply to relationships governed by 
Article 19 of General Statute Chapter 58 or G.S. 
5 8 3 165. 

Statutory Authority G. S. 58-2-40; 58-2-225. 

.0608 EXAMINATION AUTHORITY 

(a) An intermediary is subject to examination by 
the Commi ss ioner. — The Commis s ioner shall have 
access to all books, bank accounts, and records of 
an intermediary in a form usable to the Commi3 
sioner. 

tb} — A manager may be examined as if it were 
the reinsurer. 

Statutory Authority G. S. 58-2-40; 58-2-225. 

.0609 PENALTIES AND LIABILITIES 

{a} — An intermediary, insurer, or reinsurer found 
by — the Commissioner, — after hearing, — te — be in 
violation of any provision of thi s Section shall: 

fB F©f — eaeh — separate — violation, — pay — a 

penalty — ef- — ene — thousand — dollars 
($1,000), not to exceed a total penalty 
of five thousand dollars ($5,000); 

(2) Be subject to revocation or suspension 

of its license; and 

0) If a violation was committed by the 

intermediary, — the — intermediary — shall 
make re s titution to the insurer or rein 
surer or to the rehabilitator or liquida 
tor of the insurer or reinsurer for any 
net losses incurred by the in s urer or 
rein s urer that are caused by the viola 
tion . 

fh) A-ny — order of the — Commissioner under 

Paragraph (a) of this Rule i s s ubject to judicial 
review under G.S. 58 2 75. 

{e) — Nothing in this Rule affect s the right of the 
Commi ss ioner — te — impose — any — other — penaltie s 
provided in General Statute Chapter 58. 

(d) Nothing in thi s Rule limits or restricts the 
rights of policyholders, claimants, — creditors, — ef 
other third partie s ; or confers any rights on those 
persons. 

Statutory Authority G.S. 58-2-40; 58-2-225. 



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PROPOSED RULES 



supervising or training the Associate. 



TITLE 12 - DEPARTMENT 
OF JUSTICE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Private Protec- 
tive Services Board intends to adopt rules cited as 
12NCAC7D .1101 - .1110. 

1 he proposed effective date of this action is June 
1, 1994. 

1 he public hearing will be conducted at 2:00 

p.m. on March 2, 1994 at the State Bureau of Q) 

Investigation, Conference Room, 3320 Old Garner 

Road, Raleigh, N.C 27626-0500. 

JKeason for Proposed Action: To establish more 
specific guidelines for training and supervision of 
private investigator trainees. 

Comment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the Record of Hearing 
will be open for receipt of written comments 
through March 17, 1994. Written comments must 
be delivered to: W. A. Hoggard, N. C. Private 
Protective Services Board, 3320 Old Garner Road, 
Raleigh, N.C. 27626-0500. 

CHAPTER 7 -PRIVATE PROTECTIVE 
SERVICES 

SUBCHAPTER 7D - PRIVATE 
PROTECTIVE SERVICES BOARD 

SECTION .1100 - TRAINING 

AND SUPERVISION FOR 

PRIVATE INVESTIGATOR ASSOCIATES 

.1101 DEFINITIONS 

In addition to the definitions set forth in Chapter 
74C of the General Statutes of North Carolina, the 
following definitions will a pply to this Section: 

(1) "Private Investigator Associate" refers to (4) 
individuals training to become Private 
Investigators. A Private Investigator 
Associate must complete three levels of 

training requirements. 

(2) "One-on-one Supervision" means person 
to person contact whereby the licensed 
investigator is personally and directly 



The training investigator must be the 
sponsoring licensed Private Investigator 
or any licensed Private Investigator who 
is a member of the sponsoring Private 
Investigator's firm, association, or corpo- 
ration. The Private Investigator Associ- 
ate may not subcontract his employment 



to another Private Investigator unless the 
Administrator has given prior approval . 
One-on-one supervision may be satisfied 
if the Associate undergoes training from 
an individual or educational course ap- 
proved by the Administrator prior to the 
Associate receiving the training. 
"Training Checklist" refers to the docu- 
ment(s) which must indicate all areas of 
training and work that the Associate has 
performed. The supervising Private 
Investigator must be responsible for 
maintaining the training checklist and a 
copy must be given to the Associate. 
The Training Checklist must further be 
updated to reflect the date the associate 
advances from one level to another. The 
training checklist must be signed by the 
Associate and the sponsoring Private 
Investigator at the end of each reporting 
period. In the event the Associate trans- 
fers employment to another Private Inves- 
tigator, the Associate must provide the 
new supervising Private Investigator with 
the training checklist and the new spon- 
soring Private Investigator will then be 
responsible for the maintenance of the 
checklist. The Training Checklist must 
be updated on a quarterly basis for Level 
One associates and on a yearly basis for 
Level Two and Level Three associates. 
The training checklist must be maintained 
pursuant to \2 NCAC 7D .0109. When 
an associate completes Level Three, the 
Training Checklist must be made a part 
of the associate's a pplication for a Private 
Investigator's license. The Board shall 
have immediate access to the training 
checklist. 

"Associate Log" refers to the 
document(s) maintained by the 
sponsoring Private Investigator which 
must list each case the Associate has 
worked, the number of hours spent on 
the case, and the type of work 
performed. One-on-one training must be 
specifically documented within the 



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PROPOSED RULES 



Associate's log. 

Statutory Authority G. S. 74C-5(2). 

.1102 TRAINING AND SUPERVISION 
REQUIRED IN LEVEL ONE 

(a) If upon sponsorship, the associate has less 
than one year or 1,000 hours of verifiable training 
or experience, the associate will undergo 160 
hours of one-on-one supervision training. 

(b) The first 40 hours of employment must be 
one-on-one supervision. The remaining 120 hours 
of one-on-one supervision must be gathered over 
the first year of employment or the first 1,000 
hours of actual work, whichever comes first. 

(c) A Level One Associate can not, independent- 
ly of the sponsor, accept or contract employment. 
The Associate must have direct face-to-face or 
telephone contact with the sponsor or another 
licensed Private Investigator within the firm, 
association, or corporation before accepting em- 
ployment or before accepting a new case. 

(d) The sponsor or another licensed Private 
Investigator associated with the sponsor's firm, 
association, or corporation must meet with the 
Level One associate to review the associate's work 
product. The Private Investigator's review may be 
by telephone or face-to-face and must occur at 
least four times per month. The licensed Private 
Investigator must review each case on which the 
associate is working or has worked since the last 
review. Review sessions may encompass more 
than one case. 

Statutory Authority G. S. 74C-5(2). 

.1103 TRALNTNG AND SUPERVISION 
REQUIRED LN LEVEL TWO 

(a) If upon initial application for a training 
permit, the applicant has at least one year or 1,000 
hours of verifiable training or experience, the 
applicant will skip Level One and be classified as 
a Level Two Private Investigator Associate. An 
applicant that skips Level One must undergo 80 
hours of one-on-one training. The first 40 hours 
of one-on-one supervision must occur within the 
first 40 hours of employment. The remaining 40 
hours must be gathered over the first year of 
employment or the first 1.000 hours of actual 
work, which ever comes first. 

(b) A Level Two Associate can not, indepen- 
dently of the sponsor, accept or contract employ- 
ment. The Associate must have direct face-to-face 
or telephone contact with the sponsor or another 
licensed Private Investigator within the firm. 



association, or corporation before accepting em- 
ployment or before accepting a new case. 

(c) The sponsor or another licensed Private 
Investigator associated with the sponsor's firm, 
association, or corporation must meet with the 
Level Two associate to review the associate's work 
product. The Private Investigator's review may be 
by telephone or face-to-face and must occur at 
least four times per month. The licensed Private 
Investigator must review each case on which the 
associate is working or has worked since the last 
review. Review sessions may encompass more 
than one case. 

Statutory Authority G. S. 74C-5(2). 

.1104 TRALNTNG AND SUPERVISION 
REQUIRED IN LEVEL THREE 

(a) If upon sponsorship the Associate has at least 
two years or 2.000 hours of verifiable training or 
experience, the associate will be classified as a 
Private Investigator Associate and must undergo 40 
hours of one-on-one training. 

(b) The first 40 hours of employment for the 
Level Three Private Investigator Associate must be 
one-on-one supervision. 

(c) When the Level Three Associate completes 
the requirements of Level Three, the associate may 
apply for a private investigator's license. 

(d) The sponsor or another licensed Private 
Investigator associated with the sponsor's firm, 
association, or corporation must meet with the 
Level Three associate to review the associate's 
work product. The licensed Private Investigator 
must review each case on which the associate is 
working or has worked since the last review. 



Review sessions may encompass more than one 
case. 

(e) The sponsoring Private Investigator must 
have contact with the Level Three Associate 
sufficient to ensure compliance with G.S. 74C. 

Statutory Authority G. S. 74C-5I2). 

.1105 EDUCATIONAL DEGREES AND 
NON-DEGREED TRALNTNG 

(a) An applicant will receive a minimum of 400 
hours of experience credit for an associate's 
degree. The Administrator or the Board may grant 
up to 100 additional hours if the applicant can 
demonstrate that further training or course-work 
related to the private protective services industry' 
was received while obtaining the associate's 
degree. 

(~b) An applicant will receive 800 hours of 



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PROPOSED RULES 



experience credit for a bachelor's degree. The 
Administrator or the Board may grant up to 200 
additional hours if the applicant can demonstrate 
that further training or course-work related to the 
pri vate protective services industry was received 
while obtaining the bachelor's degree. 

(c) An applicant will receive 1,200 hours of 
experience credit for a graduate degree. The 
Administrator or the Board may grant an addition- 
al 300 additional hours if the applicant can demon- 
strate that further training or course-work related 
to the private protective services industry was 
received while obtaining the graduate degree. 

(d) During the first 40 hours of one-on-one 
supervision, a Level One Associate may receive up 
to 4 hours of one-on-one supervision credit for 
time spent in the courtroom observing a docketed 
trial. Of the remaining 120 hours of one-on-one 
supervision required in Level One, the Associate 
may receive up to 12 hours of credit for time spent 
in the courtroom observing an actual trial. Of the 
thousand hours of training required in Level One, 
the Associate can not receive more than 100 hours 
of credit for time spent in the courtroom observing 
an actual trial. To receive credit for courtroom 
observation, the Level One Associate must indicate 
in the Associate's Log the docket number of the 
trial and the time spent observing the actual trial. 

(e) During the first 40 hours of one-on-one 
supervision, a Level Two Associate may receive 



ug to 4 hours of one-on-one supervision credit for 
time spent in the courtroom observing a docketed 
trial. Of the remaining 80 hours of one-on-one 
supervision required in Level Two, the Associate 
may receive up to 8 hours of credit for time spent 
in the courtroom observing an actual trial. Of the 
thousand hours of training required in Level Two, 
the Associate can not receive more than 100 hours 
of credit for time spent in the courtroom observing 
an actual trial. To receive credit for courtroom 
observation, the Level Two Associate must indi- 
cate in the Associate's Log the docket number of 
the trial and the time spent observing the actual 
trial. 

(f) During the first 40 hours of one-on-one 
supervision, a Level Three Associate may receive 
ug to 4 hours of one-on-one supervision credit for 
time spent in the courtroom observing a docketed 
trial . Of the one thousand hours of training 
required in Level Three, the Associate can not 
receive more than 100 hours of credit for time 
spent in the courtroom observing an actual trial . 
To receive credit for courtroom observation, the 
Level Three Associate must indicate in the 
Associate's Log the docket number of the trial and 



the time s pent observing the actual trial. 
Statutory Authority G.S. 74C-5(2). 

.1106 TIME LIMITS ON EXPERIENCE 

(a) The Board will consider any practical experi- 
ence gained within 10 years of the application 
date. 

(b) The Board will consider any educational 
experience referred to in J_2 NCAC 7D .1 105. 

Statutory Authority G. S. 74C-5(2). 

.1107 ENFORCEMENT 

Violations by a Associate may be deemed to be 
those of the sponsor if the violation js found to be 
the result of insufficient supervision and may 
subject the sponsor to any enforcement actions 
pursuant to G.S. 74C-17. 

Statutory Authority G. S. 74C-5(2). 

.1108 GRANDFATHER CLAUSE 

All associates holding valid training permits at 
the time this section becomes effective will be 
grandfathered in at the level their experience 
dictates. All associates being grandfathered will 
only be required to watch and successfully com- 
plete the training test set forth in J_2 NCAC 7D 
.1 109 upon renewal of their training permit. 

Statutory Authority G. S. 74C-5(2). 

.1109 TRAINING VIDEO AND 
TRAINING TEST 

The Board will develop a training video and test 
which will be administered by the sponsoring 
Private Investigator. Each Associate must view 
and successfully pass the training test prior to 
submitting the initial application for a training 
permit. The sponsoring Private Investigator must 
submit written certification stating that the appli- 
cant has watched the training video and passed the 
test. 



Statutory Authority G.S. 74C-5(2). 

.1110 TRANSFERABILITY OF TRAINING 
HOURS 

If a Level One associate transfers employment to 
another Private Investigator, the one-on-one 
training will not transfer and the associate must 
undergo one-on-one supervised training with the 
new sponsoring Pri vate Investigator. If a Level 
Two or Level Three associate transfers employ- 



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ment to another Private Investigator, all training 
hours will be transferred. 

Statutory Authority G.S. 74C-5(2). 

TITLE 13 - DEPARTMENT 
OF LABOR 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Labor intends to amend rules cited as 13 NCAC 
07 A .0707 - .0711. 

1 he proposed effective date of this action is May 
1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on March 3, 1994 at the Seaboard Building 
Conference Room, 413 N. Salisbury Street, Ra- 
leigh, NC. 

lXeason for Proposed Action: To make technical 
amendments and to amend the public notice re- 
quirements to correlate with the Administrative 
Procedures Act and with NC Dept. of Labor rule- 
making notice requirements. 

Ksomment Procedures: Persons wanting to pres- 
ent oral testimony at the hearing should provide a 
written summary of the proposed testimony to the 
Department three business days prior to the hear- 
ing date. Written comments will be accepted until 
March 17, 1994. Direct all correspondence to Jill 
F. Cramer, NCDOL/OSH. 413 N Salisbury Street, 
Raleigh, NC 27603-5942. 

CHAPTER 7 - OSHA 

SUBCHAPTER 7A - GENERAL 

RULES AND OPERATIONAL 

PROCEDURES 

SECTION .0700 - RULES OF 

PRACTICE FOR VARIANCES: 

LIMITATIONS: VARIATIONS: 

TOLERANCES AND EXEMPTIONS 

.0707 VARIANCES AND OTHER 
RELIEF UNDER SECTION 

95- 132(a) 

(a) Application for a Temporary Variance. Any 
employer, or class of employers, desiring a tempo- 



rary variance from a standard, or portion thereof, 
authorized by section 95-132 of the act may file a 
written application containing the information 
specified in Paragraph (b) of this Rule with the 
Commissioner of the North Carolina Department 
of Labor, Raleigh, North Carolina 27611. 27601. 
(b) Contents. An application filed pursuant to 
Paragraph (a) of this Rule shall include: 



(1) 

(2) 

(3) 



(4) 



(5) 



(6) 



(7, 



(A) 



(B) 



(C) 



<8> 
(9) 



the name and address of the applicant; 
the address of the place or places of 
employment involved; 
a specification of the standard or por- 
tion thereof from which the applicant 
seeks a variance; 

a representation by the applicant, sup- 
ported by representations from qualified 
persons having first-hand knowledge of 
the facts represented, that he is unable 
to comply with the standard or portion 
thereof by its effective date and a de- 
tailed statement of the reasons therefor; 
a statement of the steps the applicant 
has taken and will take with specific 
dates where appropriate, to protect 
employees against the hazard covered 
by the standard; 

a statement of when the applicant ex- 
pects to be able to comply with the 
standard and of what steps he has taken 
and will take, with specific dates where 
appropriate, to come into compliance 
with the standard; 

a statement of the facts the applicant 
would show to establish that: 
The applicant is unable to comply 
with a standard by its effective date 
because of unavailability of profes- 
sional or technical personnel or of 
materials and equipment needed to 
come into compliance with the stan- 
dard or because necessary construc- 
tion or alteration of facilities cannot 
be completed by the effective date; 
He is taking all available steps to 
safeguard his employees against the 
hazards covered by the standard; and 
He has an effective program for 
coming into compliance with the 
standard as quickly as practicable; 
any request for a hearing, as provided 
in this part; 

a statement that the applicant has in- 
formed his affected employees of the 
application by giving a copy thereof to 
their authorized representative, posting 



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PROPOSED RULES 



) 



> 



a statement, giving a summary of the 
application and specifying where a copy 
may be examined, at the place or places 
where notices are normally posted, and 
by other appropriate means; and 

(10) a description of how affected employees 
have been informed of the application 
and their right to petition the commis- 
sioner for a hearing; 

(11) where the requested variance would be 
applicable to employment or places of 
employment in more than one state, 
including at least one state with a state 
plan approved under section 18 of the 
aet federal Occupational Safety and 
Health Act of 1970 , and involves a 
standard, or portion thereof identical to 
a state standard effective under such 
plan: 

(A) a side-by-side comparison of the 
federal standard, or portion thereof, 
involved with the state standard, or 
portion thereof, identical in substance 
and requirements; 

(B) a certification that the employer or 
employers have not filed for such 
variance on the same material facts 
for the same employment or place of 
employment with any state authority 
having jurisdiction under an approval 
plan over any employment or place of 
employment covered in the applica- 
tion; and 

(C) a statement as to whether, with an 
identification of, any citations for 
violation of the state standard, or 
portion thereof, involved have been 
issued to the employer or employers 
by any of the state authorities enforc- 
ing the standard under a plan, and are 
pending. 

(c) Interim Order: 

(1) Application. An application may also 
be made for an interim order to be 
effective until a decision is rendered on 
the application for the variance filed 
previously or concurrently. An appli- 
cation for an interim order may include 
statements of facts and arguments as to 
why the order should be granted. The 
commissioner may rule ex parte upon 
the application. 

(2) Notice of Denial of Application. If an 
application filed pursuant to Subpara- 
graph (1) of this Paragraph is denied. 



the applicant shall be given prompt 
notice of the denial, which shall include 
or be accompanied by, a brief statement 
of the grounds therefor. 

(3) Notice of the Grant of an Interim Or- 
der. If an interim order is granted, a 
copy of the order shall be served upon 
the applicant for the order and other 
parties. It shall be a condition of the 
order that the affected employer shall 
give notice thereof to affected employ- 
ees by the same means to be used to 
inform them of an application for a 
variance. 

(4) No interim order shall be effective for 
longer than 180 days. 

Statutory Authority G. S. 95-132. 

.0708 VARIANCES AND OTHER RELIEF 
UNDER SECTION 95- 132(b) 

(a) Application for a Permanent Variance. Any 
employer, or class of employers, desiring a perma- 
nent variance authorized by section 95- 132(d) of 
the act may file a written application containing 
the information specified in Paragraph (b) of this 
Rule, with the Commissioner of the North Caroli- 
na Department of Labor, Raleigh, North Carolina 
37444 27601. 

(b) Contents. An application filed pursuant to 
Paragraph (a) of this Rule shall include: 

(1) the name and address of the applicant; 

(2) the address of the place or places of 
employment involved; 

(3) a description of the conditions, practic- 
es, means, methods, operations, or 
processes used or proposed to be used 
by the applicant; 

(4) a statement showing how the condi- 
tions, practices, means, methods, oper- 
ations, or processes used or proposed to 
be used would provide employment and 
places of employment to employees 
which are as safe and healthful as those 
required by the standard from which a 
variance is sought; 

(5) a certification that the applicant has 
informed his employees of the applica- 
tion by: 

(A) giving a copy thereof to their autho- 
rized representative; 

(B) posting a statement giving a summary 
of the application and specifying 
where a copy may be examined, at 
the place or places where notices to 



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2155 



PROPOSED RULES 



employees are normally posted (or in 
lieu of such summary, the posting of 
the application itself); and 
(C) by other appropriate means; 

(6) any request for hearing, as provided in 
this Part; and 

(7) a description of how employees have 
been informed of the application and of 
their right to petition the commissioner 
for a hearing; 

(8) where the requested variance would be 
applicable to employment or places of 
employment in more than one state, 
including at least one state with a state 
plan approved under section 18 of the 
aet federal Occupational Safety and 
Health Act of 1970 . and involves a 
standard, or portion thereof, identical to 
a state standard effective under such 
plan: 

(A) a side-by-side comparison of the 
federal standard, or portion thereof, 
involved with the state standard, or 
portion thereof, identical in substance 
and requirements; 

(B) a certification that the employer or 
employers have not filed for such 
variance on the same material facts 
for the same employment or place of 
employment with any state authority 
having jurisdiction under an approved 
plan over any employment or place of 
employment covered in the applica- 
tion; and 

(C) a statement as to whether, with an 
identification of, any citations for 
violations of the state standard, or 
portion thereof, involved have been 
issued to the employer or employers 
by any of the state authorities enforc- 
ing the standard under a plan, and are 
pending. 

(c) Interim Order: 

(1) Application. An application may also 
be made for an interim order to be 
effective until a decision is rendered on 
the application for the variance filed 
previously or concurrently. An appli- 
cation for an interim order may include 
statements of fact and arguments as to 
why the order should be granted. The 
commissioner may rule ex parte upon 
the application. 

(2) Notice of Denial of Application. If an 
application filed pursuant to Subpara- 



graph (1) of this Paragraph is denied, 
the applicant shall be given prompt 
notice of the denial, which shall in- 
clude, or be accompanied by, a brief 
statement of the grounds thereof. 
(3) Notice of the Grant of an Interim Or- 
der. If an interim order is granted, a 
copy of the order shall be served upon 
the applicant for the order and other 
parties. It shall be a condition of the 
order that the affected employer shall 
give notice thereof to affected employ- 
ees by the same means to be used to 
inform them of an application for a 
variance. 

Statutory Authority G. S. 95-132. 

.0709 MODIFICATION: REVOCATION: 
AND RENEWAL OF RULES OR 
ORDERS 

(a) Modification or Revocation: 
(1) An affected employer or an affected 
employee may apply in writing to the 
commissioner for a modification or 
revocation of a rule or order issued 
under section 95-132(a) and/or 
95- 132(b) of the act. The application 
shall contain: 

(A) the name and address of the applicant; 

(B) a description of the relief which is 
sought; 

(C) a statement setting forth with 
particularity the grounds for relief; 

(D) if the applicant is an employer, a 
certification that the applicant has 
informed his affected employees of 
the application by: 

(i) giving a copy thereof to their 
authorized representative; 

(ii) posting at the place or places 
where notices to employees are 
normally posted, a statement 
giving a summary of the 
application and specifying where 
a copy of the full application may 
be examined (or, in lieu of the 
summary, posting the application 
itself); and 

(iii) other appropriate means. 

(E) if the applicant is an affected 
employee, a certification that a copy 
of the application has been furnished 
to the employer; and 

(F) any request for a hearing, as provided 



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PROPOSED RULES 



in this part. 
(2) The commissioner may on his own 
motion proceed to modify or revoke a 
rule or order issued under section 
95- 132(a) or 95- 132(b) of the act. In 
such event, the commissioner shall 
cause to be published a notice of his 
intention, affording interested persons 
an opportunity to submit written data, 
views, or arguments regarding the 
proposal and informing the affected 
employer and employees of their right 
to request a hearing, and shall take 
other action as may be appropriate to 
give actual notice to affected 
employees. The notice of hearing shall 
be published in ene — newspaper — ef 

general circulation m Ashevillc, 

Charlotte, Durham, Greensboro, 

Raleigh , Wilmington a-n-d 

Winston Salem, the North Carolina 
Register. Any request for a hearing 
shall include a short and plain statement 
of: 

(A) how the proposed modification or 
revocation would affect the requesting 
party, and 

(B) what the requesting party would seek 
to show on the subjects or issues 
involved. 

(b) Renewal. Any final rule or order issued 
under section G.S. 95- 132(a) or G.S. 95- 132(b) of 
the act may be renewed or extended as permitted 
by the applicable section and in the manner 
prescribed for its issuance. 

(c) Multi-State Variances. Where a federal 
variance has been granted with multi-state 
applicability, including applicability in a state 
operating under a state plan approved under 
section 18 of the act, from a standard or portion 
thereof, identical to a state standard, or portion 
thereof, without filing the information required in 
13 NCAC 7A .0707(b)(ll) or .0708(b)(8), such 
variance shall likewise be deemed an authoritative 
interpretation of the employer(s)' compliance 
obligation with regard to the state standard, or 
portion thereof, upon filing the information 
required in 13 NCAC 7A .0707(b)(ll) or 
.0708(b)(8), provided no objections of substances 
are found to be interposed by the state authority 
under 13 NCAC 7A .0710. 

Statutory Authority G.S. 95-132. 

.0710 ACTION ON APPLICATIONS 



(a) Defective Applications: 

(1) If an application filed pursuant to 
.0707, or .0708, or .0709 of this 
Section does not conform to the 
applicable section, the commissioner 
may deny the application. 

(2) Prompt notice of the denial of an 
application shall be given to the 
applicant. 

(3) A notice of denial shall include, or be 
accompanied by, a brief statement of 
the grounds for the denial. 

(4) A denial of an application pursuant to 
this Paragraph shall be without preju- 
dice to the filing of another Paragraph. 

(b) Adequate Applications: 

(1) If an application has not been denied 
pursuant to Paragraph (a) of this Rule 
the commissioner shall publish in ene 
newspaper — of general — circulation — m 
Ashevillc, Charlotte, Durham, Greens 

boro, Raleigh, Wilmington and 

Winston Salem the North Carolina 
Register a notice of the filing of the 
application and require posting of such 
notice by the applicant in a conspicuous 
place or places where notices to 
employees are customarily posted . 
Verification of the posting of this notice 
shall be provided to the commissioner. 

(2) A notice of the filing of an application 
shall include: 

(A) the terms, or an accurate summary, of 
the application; 

(B) a reference to the section of the act 
under which the application has been 
filed; 

(C) an invitation to interested persons to 
submit within a stated period of time 
written data, views, or arguments 
regarding the application; and 

(D) information to affected employers, 
employees, and appropriate state 
authority having jurisdiction over 
employment or places of employment 
covered in the application of any right 
to request a hearing on the 
application. 

(3) Where the requested variance, or any 
proposed modification or extension 
thereof, involves a federal standard, or 
any portion thereof, identical to a state 
standard, or any portion thereof, as 
provided in 13 NCAC 7A .0707(b)(ll) 
and .0708(b)(8), the s ecretary 



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2157 



PROPOSED RULES 



commissioner will promptly furnish a 
copy of the application to the 
appropriate state authority and provide 
an opportunity for comment, including 
the opportunity to participate as a party, 
on the application by such authority, 
which shall be taken into consideration 
in determining the merits of the 
proposed action. 
(4) A copy of each final decision of the 
secretary commissioner with respect to 
an application filed under 13 NCAC 7A 
.0707, .0708, or .0709 shall be 
furnished, within 10 days of issuance, 
to the state authorities having 
jurisdiction over the employment or 
place of employment covered in the 
application. 

Statutory Authority G. S. 95-132. 

.0711 REQUESTS FOR HEARINGS 
ON APPLICATIONS 

(a) Request for Hearing. Within the time 
allowed by a notice of the filing of an application, 
any affected employer, employee, or appropriate 
state agency having jurisdiction over employment 
or places of employment covered in an application 
for a multi-state variance may file with the 
secretary, commissioner, in quadruplicate, a 
request for a hearing on the application. 

(b) Contents of a Request for a Hearing. A 
request for a hearing pursuant to Paragraph (a) of 
this Rule shall include: 

(1) a concise statement of facts showing 
how the employer or employee would 
be affected by the relief applied for; 

(2) a specification of any statement or 
representation in the application which 
is denied, and a concise summary of the 
evidence that would be adduced in 
support of each denial; and 

(3) any views or arguments on any issue of 
fact or law presented. 



1 he proposed effective date of this action is 
August 1, 1994. 

1 he public hearing will be conducted at 10:00 

a.m. to 4:00 p.m. on the following dates and 
locations: 

March 8, 1994 

Transportation Building Auditorium 

1 South Wilmington Street 

Raleigh, N.C. 

March 15, 1994 

Board of Commissioner 's Room 

Cabarrus County Courthouse 

65 Church Street 

Concord, N. C. 

March 22, 1994 

Southern Pines Town Hall 

140 Memorial Park Court 

Southern Pines, N. C 

ixeason for Proposed Action: Allow permits for 
16-foot wide mobile or modular homes to be 
transported on specif ed North Carolina highways. 

Comment Procedures: Interested persons may 
preregister to speak at the public hearings by- 
contacting Emily Lee, N.C. DOT. P.O. Box 
25201, Raleigh, NC 27611, (919) 733-2520 no 
later than two days prior to the hearing. A 
10-minute speaking time limit will be observed. 
Written comments will also be accepted and should 
be sent to Ms. Lee at the above address no later 
than April 1, 1994. 



Statutory Authority G.S. 95-132. 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Transportation intends to amend rule cited as 19A 
NCAC 2D .0607. 



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PROPOSED RULES 



CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2D - HIGHWAY OPERATIONS 

SECTION .0600 - OVERSIZE-OVERWEIGHT PERMITS 

.0607 PERMITS- WEIGHT, DIMENSIONS AND LIMITATIONS 

(a) Vehicle/vehicle combinations with non-divisible overwidth loads are limited to a maximum width of 15 
feet. Authorization for a permit may be given by the Central Permit Office or head of the Maintenance Unit 
for movement of loads in excess of 15 feet for buildings, structures, electrical equipment, -er machinery _or 
mobile/modular homes . If blades of construction equipment or front end loader buckets cannot be angled to 
extend no more than 12 feet across the roadway, they shall be removed. A blade, bucket or other attachment 
that is an original part of the equipment as manufactured which has been removed may be hauled with the 
equipment without being considered a divisible load. Permission to move vehicles wider than 12 feet in width 
may be denied if considered by the issuing agent to be unsafe to the traveling public or if the highway cannot 
accommodate the move due to width. Loads must be so placed on vehicle/ vehicle combination so as to 
present least over dimension to traffic. 

A single trip permit shall be issued vehicle specific not to exceed a width of 15 feet for all movements unless 
authorized by the Central Permit Office or Head of Maintenance. Permits for house moves shall be issued 
as specified in G.S. 20-356 through G.S. 20-372. An exception is mobile/modular homes with a width not 
to exceed 16 feet to include any overhang shall be permitted for export out of state on approved designated 
routes. 

An annual permit shall be issued vehicle specific not to exceed a maximum width of 12 feet authorizing 
travel on all highways in North Carolina. Mobile/modular homes being transported from the manufacturer 
to an authorized North Carolina mobile/modular home dealership are an exception and shall be permitted for 
a width not to exceed a 14 feet foot unit with an allowable roof overhang not to exceed a total of 12 inches. 
These mobile homes shall be authorized to travel on designated North Carolina, Interstate and US Highways 
routes approved by the Department of Transportation . 

(b) The maximum weight permitted on a designated route is determined by the bridge capacity of bridges 
to be crossed during movement. Moves exceeding weight limits for highways or bridge structures may be 
denied if considered by the issuing agent to be unsafe and if they may cause damage to such highway or 
structure. A surety bond may be required as determined by the issuing agent to cover the cost of potential 
damage to pavement, bridges or other damages incurred during the permitted move. 

(1) The maximum single trip and annual permit weight allowed for a specific vehicle or vehicle 
combination not including off highway construction equipment without an engineering study is: 

Single axle 25,000 lbs. 

2 axle tandem 50,000 lbs. 

3 or more axle group 60,000 lbs. 

3 axle vehicle 60,000 lbs. 

4 axle vehicle 75,000 lbs. 

5 axle vehicle 94,500 lbs. 

6 axle vehicle 108,000 lbs. 

7 or more axle vehicle 122,000 lbs. 

(2) The maximum permit weight allowed for off highway construction equipment is: 
(A) Self-propelled scrapers with low pressure tires: 

Single axle 37,000 lbs. 

Tandem axle 50,000 lbs. 

2 AXLE VEHICLE 

extreme wheelbase less than 10' 65,000 lbs. 

10' or greater 70,000 lbs. 

3 AXLE VEHICLE 

single/tandem axle configuration 

extreme wheelbase less than 16' 75,000 lbs. 

16' or greater 80,000 lbs. 

single/single/single axle 



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PROPOSED RULES 



configuration gross weight determined 

after review of schematics 
4 AXLE VEHICLE 

extreme wheelbase 28' or greater 90,000 lbs. 

single axle 37,000 lbs. 

(B) Self-propelled truck cranes with counterweights and boom removed (if practical): 

2 AXLE VEHICLE 

single/single axle configuration 

more than 8' 50,000 lbs. 

single axle 25,000 lbs. 

3 AXLE VEHICLE 

single/tandem axle configuration 
extreme wheelbase greater than 15' 70,000 lbs. 

single axle 25,000 lbs. 

tandem axle 50.000 lbs. 

4 AXLE VEHICLE 

quad grouping (less than 8' between 
any two consecutive axles) 
extreme wheelbase greater than 18' 78,000 lbs. 

single axle 20,000 lbs. 

tandem/tandem 
extreme wheelbase greater than 16' but 78,000 lbs. 

less than 22' 
tandem axle 50,000 lbs. 

extreme wheelbase 22' or greater 90,000 lbs. 

tandem axle 50,000 lbs. 

5 AXLE VEHICLE 

tandem/tri axle configuration 

extreme wheelbase greater than 24' 86,000 lbs. 
but less than 28' 

tandem axle 37,500 lbs. 

tri axle 60.000 lbs. 

extreme wheelbase 28' or greater 94,500 lbs. 

tandem axle 37,500 lbs. 

tri axle 60.000 lbs. 
tandem/tandem/single axle configuration 

extreme wheelbase 31' or greater 94,500 lbs. 

single axle 15,000 lbs. 

tandem axle 50,000 lbs. 

6 AXLE VEHICLE 

tri/tri axle configuration 
extreme wheelbase greater than 29' 100.000 lbs. 

but less than 34' 
tri axle 60,000 lbs. 

extreme wheelbase 34' or greater 108.000 lbs. 

tri axle 60.000 lbs. 

tandem/tandem/tandem axle configuration 
extreme wheelbase greater than 37' 100,000 lbs. 

but less than 39' 
tandem axle 50,000 lbs. 

(no two consecutive set of tandems to 
exceed 90,000 lbs.) 
extreme wheelbase 39' or greater 108,000 lbs. 

tandem axle 50,000 lbs. 



2160 8:22 NORTH CAROLINA REGISTER February 15, 1994 



PROPOSED RULES 



(no two consecutive set of tandems to 
exceed 90,000 lbs.) 
7 AXLE VEHICLE 



gross weight determined 
after review of schematics 



ALL VARIATIONS OF AXLE CONFIGURATIONS OTHER THAN THOSE LISTED WILL REQUIRE SCHEMATICS 
OF THE VEHICLE TO BE FURNISHED FOR REVIEW BY THE DEPARTMENT OF TRANSPORTATION. 

(3) Vehicles hauling sealed ship containers may qualify for an overweight permit provided the vehicles: 

(A) Are going to or from a designated seaport (to include in state and out of state) and have been or 
will be transported by marine shipment; 

(B) Are licensed for maximum allowable weight allowed in G.S. 20-118; 

(C) Are vehicle/vehicle combinations with at least five axles; 

(D) Have proper documentation (shippers bill of lading or trucking bill of lading) of sealed 
commodity being transported available for enforcement inspection. 

(c) Overlength permits will be limited as follows: 

(1) Single trip permits are limited to 85 feet to include towing vehicle. Approval may be given by the 
Central Permit Office for permitted loads in excess of 85 feet after review of route of travel. 
Mobile/modular homes may be issued permits not to exceed 95 100 feet. 

(2) Annual (blanket) permits will not be issued for lengths to exceed 65 feet. Front overhang may not 
exceed 3 feet unless if transported otherwise would create a safety hazard. Mobile/modular home 
permits may be issued for a length not to exceed 94 100 feet. 

(d) There are set no set limits for permitted height as it is controlled by clearances on designated route. 
The permit shall indicate "Check Height on Structures". The issuance of the permit does not imply nor 
guarantee the clearance for the permitted load and all vertical clearances shall be checked by the permittee 
prior to movement underneath. 

(e) The move is to be made between sunrise and sunset Monday through Saturday with no move to be made 
on Sunday. Mobile/modular homes ug to a width of a _14 feet unit with an allowable roof overhang not to 
exceed a total of L2 inches are restricted to travel between sunrise and sunset Monday through 12 noon on 
Saturday. Mobile/modular homes with a width not to exceed 16 feet to include any overhang are restricted 
to travel Monday through Thursday 9:00 a.m. to 2:30 p.m. Additional time restrictions may be set by the 
issuing office if it is in the best interest for safety or to expedite traffic. No movement is permitted for a 
vehicle/vehicle combination after noon on the day preceding the six holidays of New Years Day, Memorial 
Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day and no movement is permitted 
until noon on the day following a holiday. Continuous travel (24 hr/7 day/365 days a year) is authorized for 
any vehicle/vehicle combination up to but not to exceed a gross weight of 94,500 lbs. provided the permitted 
vehicle has: 

(1) no other over legal dimension of width, height or length is included in the permitted move. 
Exception: self-propelled equipment may be authorized for continuous travel with properly marked 
overhang (front and/or rear) not to exceed a total of 10 feet, and 

(2) the vehicle is licensed for the maximum allowable weight determined by extreme axle 
measurements. 

(f) The speed of permitted moves shall be that which is reasonable and prudent for the load, considering 
weight and bulk, under conditions existing at the time; however, the maximum speed shall not exceed the 
posted speed limit. Mobile/modular homes 14 feet wide or greater are an exception and are restricted to a 
speed not to exceed 10 miles per hour below the posted limit. The driver will maintain a safe speed consistent 
with the traveling public and avoid creating traffic congestion by periodically and relinquishing the traffic way 
to allow the passage of following vehicles when a build up of traffic occurs. Seven axle self-propelled truck 
cranes with extreme wheel base of 44 feet shall not exceed a maximum speed of 45 miles per hour. 

(g) Additional safety measures are as follows: 

(1) A yellow or orange banner measuring 7 feet x 18 inches bearing the legend "Oversize Load" in 
10 inch black letters shall be displayed on the front bumper of the towing unit for all loads in 
excess of 10 feet wide; 

(2) Red flags measuring 18 inches square shall be displayed on all sides at the widest point of load for 
all loads in excess of 10 feet wide but the flags shall be so mounted as to not increase the overall 
width of the load; 



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2161 



PROPOSED RULES 



(3) Rear view mirrors and other safety devices on towing units attached for movement of overwidth 
loads shall be removed or retracted to conform with legal width when unit is not towing/hauling 
such vehicle or load; 

(4) Flashing amber lights shall be used as determined by the issuing permit office. 

(h) The object to be transported shall not be loaded or parked, day or night, on the highway right of way 
without specific permission from the office issuing the permit. 

(i) No move shall be made when weather conditions render visibility less than 500 feet for a person or 
vehicle. Moves shall not be made when highway is covered with snow or ice or at any time travel conditions 
are considered unsafe by the Division of Highways, State Highway Patrol or other Law Enforcement Officers 
having jurisdiction. Movement of a mobile/modular 14 feet unit with an allowable roof overhang not to 
exceed 12 inches or a 16 foot wide mobile/modular home to include any overhang shall be prohibited when 
wind velocities exceed 25 miles per hour in gusts. 

(j) All obstructions, including traffic signals, signs and utility lines shall be removed immediately prior to 
and replaced immediately after the move at the expense of the mover, provided arrangements for and approval 
from the owner is obtained. In no event are trees, shrubs, or official signs to be cut, trimmed or removed 
without personal approval from the district engineer having jurisdiction over the area involved. 

(k) DOT may require escort vehicles accompany oversize or overweight loads. The weight, width of load, 
width of pavement, height, length of combination, length of overhang, maximum speed of vehicle, 
geographical route of travel, weather conditions and restricted time of travel will be considered to determine 
escort requirements. 

Authority G.S. 20-119; 136-18(5); Board of Transportation Minutes for February 16, 1977 and November 10, 
1978. 



TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. State Board of Cosmetic 
Art Examiners intends to amend rules cited as 21 
NCAC 14H .0005, .0008, .0010 - .0013, .0018 
and 14J .0501. 

1 he proposed effective date of this action is May 
1, 1994. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice); Anyone wishing to demand a public hear- 
ing may contact Vicky Goudie, Executive Secre- 
tary, N. C. State Board of Cosmetic Art Examiners , 
1110 Navaho Drive, Raleigh, N.C. 27609, (919) 
850-2793. This demand must be in writing and 
received by March 15, 1994. 

Ixeason for Proposed Action; 
21 NCAC 14H - Bring Sanitation rules up-to-date. 
21 NCAC 14J .0501 - Clarify the handling of 
cosmetology instruction taken in another state. 

Lsomment Procedures: Written comments regard- 
ing these rules should be mailed or delivered to 



Vicky Goudie, Executive Secretary, N. C. State 
Board of Cosmetic Art Examiners, 1110 Navaho 
Drive, Raleigh, N.C. 27609, and received by 
March 15, 1994. 

CHAPTER 14 - BOARD OF 
COSMETIC ART EXAMINERS 

SUBCHAPTER 14H - SANITATION 

.0005 SANITARY RATINGS AND 
POSTING OF RATINGS 

(a) The sanitary rating of a beauty establishment 
shall be based on a system of grading outlined in 
this Subchapter. Based on the grading, all estab- 
lishments will be rated in the following manner: 

(1) all establishments receiving a rating of 
at least 90 percent or more, shall be 
awarded a grade A; 

(2) all establishments receiving a rating of 
at least 80 percent, and less than 90 
percent, shall be awarded grade B; and 

(3) all establishments receiving a rating of 
at least 70 percent, and less than 80 
percent, shall be awarded grade C. 

(b) Every beauty establishment shall be given a 
sanitary rating. A cosmetic art school is normally 
graded four times a year, and a cosmetic art salon 
is normally graded twice once a year. 

(c) The sanitary rating given to a beauty estab- 
lishment shall be posted in a conspicuous place at 



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PROPOSED RULES 



all times. 

(d) No beauty establishment shall be permitted 
to operate without first having obtained a sanitary 
rating card with a grade of not less than 70 per- 
cent. 

(e) Cosmetic art inspectors shall give each 
beauty establishment a new sanitary rating card 
each year. 

(f) Violation of any sanitary rules, or the opera- 
tion of a beauty establishment which fails to 
receive a sanitary rating of at least 70 percent 
(grade C) shall be sufficient cause for revoking or 
suspending the letter of approval or permit. 

(g) A re-inspection for the purpose of raising the 
sanitary rating of a beauty establishment shall not 
be given within 30 days of the last inspection, if 
the rating at the last inspection was less than 70 
percent. 

Statutory Authority G.S. 88-23; 88-30. 

.0008 FLOOR COVERINGS 

fa) All floor coverings shall be easily cleanable, 
and shall be kept clean and in good repair. 

{b) Bathroom floors s hall be constructed of 

washable tile. 

Statutory Authority G. S. 88-23. 

.0010 BATHROOM FACILITIES 

(a) Toilet and hand washing facilities consisting 
of at least one commode and one lavatory with hot 
and cold running water, soap and individual towels 
shall be provided. 

(b) It is suggested if both sexes arc employed or 
served, separate facilities for each sex equal to the 
minimum requirements in (a) of this Rule shall be 
provided. 

{b} (e) A residential beauty salon shall furnish 
bathroom facilities separate and apart from the 
residence. 

Statutory Authority G. S. 88-23. 

.0011 CLEANLINESS OF OPERATORS 

(a) All operators should be personally clean and 
neat. 

(b) Every person employed in a beauty estab- 
lishment shall wear clean, washable non-see- 
through outer garments with sleeves while serving 
patrons. 

Statutory Authority G S. 88-23. 

.0012 CLEANLENTESS OF CLINIC 



AREA: SUPPLIES: COMBS 
AND BRUSHES 

(a) The clinic area shall be kept clean. 

(b) Waste material shall be kept in suitable 
covered receptacles. The area surrounding the 
waste receptacles shall be maintained in a neat and 
sanitary manner. 

(c) Sanitation rules which apply to towels and 
cloths are as follows: 

(1) Separate and clean towels shall be used 
for each patron. 

(2) After a towel has been used once, it 
shall be discarded and placed in a 
clean, closed container until properly 
laundered. 

(3) Clean towels s hall be kept in a clean, 
closed cabinet until they arc needed 
There shall be a supply of clean towels 
at aU times . 

(4) Chair cloths and shampoo apron s All 
capes used on patrons shall be kept 
clean and shall not be allowed to come 
in direct contact with the patron's neck. 

(d) The head rest of an operating chair shall be 
covered — with — a clean — towel — or other s anitary 
covering before being used. 

feHd) At least six combs and brushes shall be 
provided for each cosmetology operator and 
cosmetology student. 

ff-)(e) All combs, brushes and manicurist instru- 
ments shall be cleaned and disinfected after each 
use in the following manner: 

(1) They shall be soaked in a cleaning 
solution that will not leave a residue 
and, if necessary, scrubbed. 

(2) They shall be disinfected by immersion 
for a least ten minutes in 70 percent by 
volume isopropyl alcohol, or they shall 
be di s infected, in accordance with the 
manufacturer's instructions that state 
the solution will destroy HIV virus, TB 
or HBV and is with a di s infectant ap- 
proved by the Federal Environmental 
Protection Agency. When selecting a 
disinfectant, care should be taken to 
choose one that will not shorten the 
service life of the comb, brush or mani- 
curing instrument. In using a disinfec- 
tant, care should be taken to wear any 
personal protective equipment, such as 
gloves, recommended in the Material 
Safety Data Sheet prepared on the 
disinfectant by the manufacturer. 

(3) They shall be rinsed with hot tap water 
and dried thoroughly with a clean towel 



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2163 



PROPOSED RULES 



before their next use. If they are not 
used immediately, they shall be stored 
in a clean, closed cabinet until they are 
needed. 

Statutory Authority G. S. 88-23: 88-30. 

.0013 CLEANLINESS OF SCISSORS: 
SHEARS: RAZORS AND 
OTHER EQUIPMENT 

(a) All scissors, shears, razors, and other metal 
instruments used while shaping hair fltttst shall be 
cleaned and disinfected after each use in the 
following manner: 

(1) If the implement is not immersible, it 
must shall be cleaned by wiping it with 
a clean cloth moistened with 70 percent 
by volume isopropyl alcohol or with a 
disinfectant that states the solution will 
destroy HIV, TB or HBV viruses and 
approved by the Federal Environmental 
Protection Agency in accordance with 
the manufacturer's instructions. 



(2) If it is immersible, it must shall be 
disinfected by immersion, at least once 
a day and whenever it comes in contact 
with blood, with a disinfectant that 
states the solution will destroy HIV, TB 
or HBV viruses, and in 70 percent by 
volume isopropyl alcohol or in a disin 
fectant approved by the Federal Envi- 
ronmental Protection Agency in accor- 
dance with the manufacturer's instruc- 
tions. 

(3) If the implement is not used immediate- 
ly after cleaning, it must be stored in a 
clean, closed cabinet until it is needed. 

(b) Furniture, equipment and fixtures must be of 
a washable material and kept clean and in good 
repair. 

(c) Tanning beds must be wiped with a cleaning 
solution containing at least one part alcohol or 
household bleach for every ten parts water. 

Statutory Authority G. S. 88-23. 



.0018 SYSTEMS OF GRADING BEAUTY ESTABLISHMENTS 

(a) The system of grading the sanitary rating of manicurist schools, based on the rules set out in 21 NCAC 
14H .0006 to .0017 shall be as follows, setting out areas to be inspected and considered, and the points given 
for compliance: 

(1) clean and well-repaired entrance and reception room 2 

(2) general condition of the entire establishment 8 

(3) water system; hot and cold running water 2 

(4) walls, ceiling and floors: 

(A) construction and coverings 4 

(B) clean 4 

(C) good repair 3 

(5) lighting and fresh continuous ventilation (windows included); their adequacy 
and cleanliness 7; 

(6) public toilet: 

(A) clean and well ventilated 5 

(B) soap and individual towels furnished 5 

(C) hot and cold running water 2 

(7) appearance of operators and students 4 

(8) linens: 

(A) clean towels properly stored and in adequate supply of clean towels 2 

(B) soiled towels properly stored in closed containers 2 

(9) waste in closed containers and clean area 4 

(10) equipment cleanliness: 

(A) disinfectants selected from those approved by the Federal Environmental 
Protection Agency 6 

(B) disinfectants used properly 5 

(C) all implements cleaned, disinfected, and properly stored 12 

(D) booths clean 8 

(11) working area: 
(A) lavatories clean 4; 



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PROPOSED RULES 



(B) jars and containers closed, clean and disinfected 2; 

(C) no unnecessary articles in work area 2; 

(12) antiseptics and first aid supplies on hand 1; 

(13) cosmetics: 

(A) clean and sanitary conditions 2; 

(B) storage area for supplies clean and in order 3; 

(14) no animals or birds kept in establishment 1. 

(b) The system of grading the sanitary rating of all other beauty establishments, based on the rules set out 
in 21 NCAC 14H .0006 to .0017 shall be as follows, setting out areas to be inspected and considered, and 
the points given for compliance: 

(1) clean and well-repaired entrance and reception room 2; 

(2) general condition of the entire establishment 8; 

(3) water system; hot and cold running water 2; 

(4) walls, ceiling and floors: 

(A) construction and covering 4; 

(B) clean 4; 

(C) good repair 3; 

(5) lighting and ventilation (windows included); their adequacy and cleanliness 3; 

(6) public toilet: 

(A) clean and well ventilated 5, 

(B) soap and individual towels furnished 5, 

(C) hot and cold running water 2; 

(7) appearance of operators or student 4; 

(8) linens: 

(A) clean towels properly stored and in adequate supply of clean towels 2, 

(B) soiled towels properly stored in closed containers 2, 

(C) hair cloths clean capes 1; 

(9) waste in closed containers and clean area 4; 

(10) equipment cleanliness: 

(A) disinfectants selected from those approved by the Federal Environmental 

Protection Agency 6, 

(B) disinfectants used properly 5, 

(C) all implements cleaned, disinfected, and properly stored 12; 

(11) working area: 

(A) booths clean 4, 

(B) lavatories clean 4, 

(C) jars and containers clean and disinfected 2, 

(D) no unnecessary articles in work area 2; 

(12) dryers clean and in repair 3; 

(13) styling and shampooing chairs clean and sanitary 4; 

(14) antiseptics and first aid supplies on hand 1; 

(15) cosmetics: 

(A) clean and sanitary condition 2, 

(B) storage area for supplies clean and in order 3; 

(16) no domestic animals or birds kept in establishment 1. 



Statutory Authority G.S. 88-23; 88-30. 



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PROPOSED RULES 



SUBCHAPTER 14J - COSMETOLOGY 
CURRICULUM 

SECTION .0500 - CREDIT FOR 

COSMETOLOGY STUDY 

OUTSIDE OF NORTH CAROLINA 

.0501 APPROVAL OF CREDIT FOR 

COSMETOLOGY INSTRUCTION/ 
ANOTHER STATE 

(a) A cosmetology student may receive credit 
for instruction taken in another state if the condi- 
tions set forth in this Rule are met or by approval 
of the Board . 

(b) The cosmetology student's record shall be 
certified by the state agency or department that 
issues licenses to practice in the cosmetic arts. If 
this agency or department does not maintain any 
student records or if the state does not give license 
to practice in the cosmetic arts, then the records 
may be certified by any state department or state 



agency that does maintain such records and is 
willing to certify their accuracy. If no state 
department or board will certify the accuracy of 
the student's records, then this Board will not give 
any credit for the out of state instruction shall 
review the student's records on a case-by-case 
basis . 

(c) If the requirements of Paragraph (b) of this 
Rule are met, then the Board will give credit for 
hours of course work and for mannequin and live 
model performances to the extent certified, up to 
the amount of credit that the student would receive 
for instruction in a school licensed by the Board. 
If the certification includes only total hours and 
does not specify what performances have been 
completed, this Board will not give any credit for 
performances completed as part of the out-of-state 
instruction. 

Statutory Authority G.S. 88-10; 88-13. 






I\otice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina State Board of Dental 
Examiners intends to amend rule cited as 21 NCAC 16M .0001. 

1 he proposed effective date of this action is June 1 , 1994. 

1 he public hearing will be conducted at 3:00 p.m. on March 11 , 1994 at the Office of the North Carolina 
State Board of Dental Examiners. Chatham Building of the Koger Executive Center, 3716 National Drive, 
Suite 221 , Raleigh, North Carolina. 

MXeason for Proposed Action: To require each dentist renewing his license to practice dentistry- in North 
Carolina to pay $15.00 to be contributed to the operation of the Caring Dentist Program. 

Comment Procedures: Any person desiring to present oral data, views, or arguments on the proposed rule 
must, at least 10 days prior to the proposed hearing, file a notice with the Board. Notice of such request to 
appear or failure to give timely notice may be waived by the Board in its discretion. Comments should be 
limited to five minutes. Any person permitted to make an oral presentation is directed to submit a written 
statement of such presentation to the Board prior to or at the time of such hearing. Tlie Board's address is 
Post Office Box 32270, Raleigh, North Carolina 27622-2270. Any person may file written submission of 
comments or argument at any time up to and including April 1 , 1994. 

CHAPTER 16 - BOARD OF DENTAL EXAMINERS 

SUBCHAPTER 16M - FEES PAYABLE 



.0001 DENTISTS 

(a) The following fees shall be payable to the Board: 
(1) Application for general dentistry examination 



$200.00 



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PROPOSED RULES 



(2) Application for instructor's license and examination or renewal $ 75.00 

(3) Application for provisional license $ 75.00 

(4) Application for intern permit or renewal thereof $ 75.00 

(5) Certificate of license to a resident dentist desiring to change to another state or territory $ 25.00 

(6) License issued to a practitioner of another state or territory to practice in this State $125.00 

(7) Reinstatement of license after retirement from practice in this State $125.00 

(b) The fee payable to the Board for each general dentistry license renewal shall be annually fixed by the 
Board. Each year the Board shall give written notice of the amount of the renewal fee to each dentist licensed 
to practice in this state by mailing such notice no later than November 30 to the last address of record for each 
dentist. Said renewal fee shall not exceed seventy-five dollars ($75.00). 

(c) Each dentist renewing his license to practice dentistry in North Carolina shall be assessed a fee of fifteen 
dollars ($15.00), in addition to the annual renewal fee, to be contributed to the operation of the Caring Dentist 
Program, an organization established to assist impaired dentists. 

Statutory Authority G.S. 90-28; 90-39; 90-48. 



* * * * * * * 



^C^C3{f)iC)ft)lc4ci|C)ic^C 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the Board of Medical Examiners of 
the State of North Carolina intends to adopt rules 
cited as 21 NCAC 32P .0001 - .0006. 

1 he proposed effective date of this action is May 
1, 1994. 

1 he public hearing will be conducted at 9:00 
a.m. on March 2, 1994 at the NC Medical Board, 
1203 Front Street, Raleigh, NC 27609. 

lYeason for Proposed Action: To conform with 
new statutes. 

Lsomment Procedures: Persons interested may 
present written or oral statements relevant to the 
actions proposed at a hearing to be held as indi- 
cated above. Written statements not presented at 
the hearing should be directed before March 17, 
1994 to the following address: NC Medical 
Board, Administrative Procedures, PO Box 26808, 
Raleigh, NC 2761 1-6808. 



or other words not in accordance with ethical 
customs of the medical profession. 

Statutory Authority G.S. 55B-5; 55B-12; 57C-2-01. 

.0002 PREREQUISITES FOR 
ORGANIZATION 

(a) Before filing the articles of organization for 
a limited liability company with the Secretary of 
State, the organizing members shall submit the 
following to the Board : 

(1) a registration fee as set by Rule .0006 
of this Subchapter; and 

(2) a certificate certified by all organizing 
members, setting forth the names and 
addresses of each person who will be 
employed by the limited liability com- 
pany to practice medicine, and stating 
that all such persons are duly licensed 
to practice medicine in North Carolina, 
and representing that the company will 
be conducted in compliance with the 
North Carolina Limited Liability Com- 
pany Act and this Subchapter. 

Ob) A certification that each of the organizing 
members is licensed to practice medicine in North 
Carolina shall be returned to the limited liability 
company for filing with the Secretary of State. 



CHAPTER 32 - BOARD OF 
MEDICAL EXAMINERS 



Statutory Authority G.S. 55B-4; 55B-10; 55B-12; 
57C-2-01. 



SUBCHAPTER 32P - LIMITED 
LIABILITY COMPANIES 

.0001 NAME OF LIMITED LIABILITY 
COMPANY 

The name of a limited liability company to 
practice medicine shall not include any adjectives 



.0003 CERTIFICATE OF REGISTRATION 

A Certificate of Registration for a limited liabili- 
ty_ company shall remain effective until December 
31 of each odd-numbered year. A Certificate of 
Registration shall be renewed biennially on appli- 
cation forms supplied by the Board. The applica- 
tion shall be accompanied by a renewal fee as set 



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2167 



PROPOSED RULES 



by Rule .0006 of this Subchapter. 

Statutory Authority G.S. 55B-10; 55B-11; 57C-2- 
01. 

.0004 CHARTER AMENDMENTS AND 
MEMBERSHIP TRANSFERS 

The Board shall issue the certificate authorizing 
transfer of membership when membership is 
transferred in the company. This transfer form 
shall be permanently retained by the company. 
The membership books of the company shall be 
kept at the principal office of the company and 
shall be subject to inspection by authorized agents 
of the Board. 

Statutory Authority G. S. 55B-6; 55B-12; 57C-2-01. 

.0005 DOCUMENTS 

The forms and documents regarding limited 
liability companies are issued by the Board. 

Statutory Authority G.S. 150B-11. 

.0006 FEES 

The initial registration fee for a limited liability 
company is fifty dollars ($50.00). The fee for 
renewal of a Certificate of Registration is 
twenty-five dollars ($25.00). 

Statutory Authority G.S. 55B-10; 55B-11; 57C-2- 
01. 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the Board of Medical Examiners of 
the State of North Carolina intends to adopt rules 
cited as 21 NCAC 32Q .0101 - .0104, .0201 - 
.0208. 

1 he proposed effective date of this action is May 
1, 1994. 

1 he public hearing will be conducted at 11:00 
a.m. on March 18. 1994 at the NC Medical 
Board, 1203 Front St. , Raleigh, NC 27609. 

IXeason for Proposed Action: To include physi- 
cian assistants in the health and effectiveness 
program already in place for impaired pltysicians. 



K^omment Procedures: Persons interested may 
present written or oral statements relevant to the 
actions proposed at a hearing to be held as indi- 
cated above. Written statements not presented at 
the hearing should be directed before March 17, 
1994 to the following address: NCBME, Adminis- 
trative Procedures, P.O. Box 26808, Raleigh, NC 
27611-6808. 

CHAPTER 32 - BOARD OF MEDICAL 
EXAMINERS 

SUBCHAPTER 32Q - IMPAIRED 
PHYSICIAN ASSISTANT PROGRAM 

SECTION .0100 - GENERAL 
INFORMATION 



.0101 

The 
ter: 
ill 



ill 



DEFINITIONS 

following definitions apply to this Subchap- 



" Board" means the Board of Medical 
Examiners of the State of North Caroli- 
na. 

"Committee" means the North Carolina 
Academy of Physician Assistants Health 
and Effectiveness Committee established 
to function as an advisory body to the 
North Carolina Physicians Health Pro- 
gram. 

"Impairment" means mental illness, 
chemical dependency, physical illness, or 
aging problems. 

"Program" means the North Carolina 
Physicians Health Program established 
for promoting a coordinated and effective 
peer review process. 

"Medical Director" means the person 
employed by the Program to coordinate 
the activities of the Program. 
"Physician Assistant" means an individual 
licensed or authorized by the Board to 
perform medical acts, tasks, or functions 
in accordance with North Carolina law. 



Statutory Authority G.S. 90-21.22. 

.0102 AUTHORITY 

G.S. 90-21.22. entitled "Peer Review Agree- 
ments." authorizes the Board to adopt rules allow- 
ing it to enter into agreements with the North 
Carolina Academy of Physician Assistants. The 
Board is further required to adopt rules with 
provisions concerning impaired physician assistant 



£3) 

£4] 

£5} 
£61 



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PROPOSED RULES 



programs. The rules in this Subchapter are adopt- 
ed by the Board pursuant to this authority. 

Statutory Authority G. S. 90-21.22. 

.0103 PEER REVIEW AGREEMENTS 

The Board may enter into peer review agree- 



ments with the North Carolina Academy of Physi- 
cian Assistants. Peer review agreements may 
cover some or all of the peer review activities 
delineated in G.S. 90-21.22, as deemed appropri- 
ate by the Board. 

Statutory Authority G.S. 90-21.22. 

.0104 DUE PROCESS 

Any action taken pursuant to a peer review 
agreement must afford the subject physician 
assistant all due process rights enumerated in G.S. 
90-14.1 and all relevant due process rights con- 
tained in the North Carolina Administrative Proce- 
dure Act. G.S. 150B. 

Statutory Authority G.S. 90-21.22. 

SECTION .0200 - GUIDELINES FOR 
PROGRAM ELEMENTS 

.0201 RECEIPT AND USE OF 

INFORMATION OF SUSPECTED 
IMPAIRMENT 

(a) The Program may receive information 
concerning physician assistants with suspected 
impairments from any source, including reports 
made by but not limited to medical or paramedical 
professionals, family members, or self- referral. 

(b) The Board shall provide information to the 
Program as required under G.S. 90- 14(b). 

(c) If the Program receives information of a 
physician assistant suspected of impairment, the 
Program shall conduct an investigation. The 
Medical Director of the Program shall coordinate 
all such investigations. 

(d) The Program may conduct routine inquiries 
regarding physician assistants with suspected 
impairments. 

(e) As part of its investigation, the Program may 
require a physician assistant suspected of impair- 
ment to submit to personal interviews before the 
Medical Director of the Program, the Committee 
chairperson, a Committee member, or the full 
Committee. 

Statutory Authority G.S. 90-21.22. 



.0202 INTERVENTION AND REFERRAL 

(a) Following an investigation, if impairment is 
confirmed, the Program shall initiate intervention 
using specialized techniques designed to assist the 
impaired physician assistant m acknowledging 
responsibility for dealing with the impairment. 
Interventions are arranged and conducted as soon 
as possible after the Program confirms impairment. 

(b) In cases referred by the Board, a representa- 
tive of the Board may be present when 



interventional methods and objectives are discussed 
with the impaired physician assistant. 

(c) Once intervention is initiated, the Program 
may refer the impaired physician assistant to an 
appropriate treatment source. 

(d) The Program determines interventional 
methods and objectives on a case by case basis. 

(e) The Program evaluates all treatment sources 
before referring any impaired physician assistant 
for treatment. 

(f) The Program records all intervention 
outcomes, including treatment contracts, that are 
elements of an intervention. 



Statutory Authority G.S. 90-21.22. 

.0203 MONITORING TREATMENT 

The Program shall monitor each treatment source 
to which it refers physician assistants as to the 
treatment source's ability to provide: 

(1) adequate medical and non-medical 
staffing; 

(2) appropriate treatment; 

(3) affordable treatment; 

(4) adequate facilities; and 

(5) a ppropriate post-treatment support. 

Statutory Authority G.S. 90-21.22. 

.0204 MONITORING REHABILITATION 
AND PERFORMANCE 

(a) The Program shall monitor rehabilitation and 
performance requirements for each physician 
assistant who is the subject of intervention under 
this Subchapter. 

(b) The Program may test the physician 
assistant's adherence to rehabilitation regularly, 
randomly, or on demand. 

(c) The Program may require treatment sources 
to submit reports to the Program regarding a 
physician assistant's rehabilitation and 
performance. 

(d) The Program may require an impaired 
physician assistant to submit to periodic personal 
interviews before the Medical Director of the 



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2169 



PROPOSED RULES 



Program, the Committee chairperson, a Committee 
member, or the full Committee. 

(e) The Program shall maintain appropriate case 
records. 

Statutory Authority G.S. 90-21.22. 

.0205 MONITORING POST-TREATMENT 
SUPPORT 

(a) In appropriate circumstances, the Program 
may offer post-treatment support to impaired 
physician assistants. This post-treatment support 
may include, but is not limited to, family 
counseling, locum tenens, advocacy and other 
services and programs that the Program deems 
appropriate to improve recoveries. 

(b) The Program shall monitor treatment 
sources' post-treatment support on an ongoing 
basis. 



(c) The Medical Director shall monitor the 
Program's post-treatment support on an ongoing 
basis. 



Statutory Authority G.S. 90-21.22. 

.0206 REPORTS OF INDIVIDUAL CASES 
TO THE BOARD 

(a) After the Program has investigated and 
reviewed a physician assistant suspected of impair- 
ment, the Program shall determine whether G.S. 
90-21. 22(d) requires the Program to submit a 
report to the Board. 

(b) Quarterly, the Program shall submit a re port 
to the Board and the Committee on the status of all 
physician assistants then involved ]n the Program 
who have been previously reported by the Board. 
The Program shall submit to the Board periodic 
reports on the status of any physician assistants 
previously reported to the Board then in active 
treatment until such time as mutually agreed to by 
the Board and the Program. 

Statutory Authority G.S. 90-21.22. 

.0207 PERIODIC REPORTING OF 

STATISTICAL INFORMATION 

Annually, the Program shall submit to the Board 
and the Committee a comprehensive statistical 
report, which shall include information concerning 
physician assistants with suspected impairments, 
impairments, self-referrals, post-treatment support 
and other significant demographic and substantive 
information collected through Program operations. 

Statutory Authority G.S. 90-21.22. 



.0208 CONFIDENTIALITY 

Any non-public information that the Program 
acquires, creates, or uses in good faith shall be 
treated according to G.S. 90-21.22. 

Statutory Authority G.S. 90-21.22. 

******** ****#***£* 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Mortuary Science intends to amend rules cited as 
21 NCAC 34B .0103, .0110, .0120; 34D .0202 
and adopt 34B .0126, with changes from the 
proposed text noticed in the Register, Volume 8, 
Issue 15, pages 1461 - 1463. 

1 he proposed effective date of this action is June 
1, 1994. 

treason for Proposed Action: 
21 NCAC 34B .0103 — To permit trainees, under 
supervision, to engage in preneed funeral planning 
and to define supervision for all trainee activities. 
21 NCAC 34B .0110 — To require trainee reports 
to include names of purchasers of preneed funeral 
contracts. 

21 NCAC 34B .0120 - To require trainee affidavit 
to include number of preneed funeral contracts 
assisted in. 

21 NCAC 34B .0126 — To require trainees in 
fiineral directing and funeral service to gain 
experience in planning funerals as well as in post- 
planning activities. 

21 NCAC 34D .0202 — To permit trainees, under 
supervision, to negotiate, hut not sign, preneed 
fiineral contracts. 

Lsonvnent Procedures: Interested persons may 
present statements in writing by mail addressed to 
the NC Board of Mortuary Science, P.O. Box 
27368, Raleigh, NC 2761 1-7368. 

tLditor's Note: An agency may not adopt a rule 
that differs substantially from the text of a pro- 
posed rule published in the Register, unless the 
agency publishes the text of the proposed differ- 
ent rule and accepts comments on the new text 
for at least 30 days after the publication of the 
new text. 

CHAPTER 34 - BOARD OF 



2170 



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February 15, 1994 



PROPOSED RULES 



MORTUARY SCIENCE 



210.25(a)(4); 90-210. 67(a); 90-210. 69(a). 



SUBCHAPTER 34B - FUNERAL 
SERVICE 

SECTION .0100 - RESIDENT 
TRAINEES 

.0103 AUTHORIZED PRACTICE: 
SUPERVISION 

(a) Duly certified resident trainees in training 
for funeral service, duly certified resident trainees 
in training for funeral directing and duly certified 
resident trainees in training for embalming, while 
participating in learning experiences and while 
supervised by a person licensed by the Board as a 
funeral service licensee, funeral director or em- 
balmer, respectively, may engage assist in the 
practice of funeral service, funeral directing or 
embalming respectively, respectively, as limited by 
this Rule. When such person s o licensed by the 
Board i s not on the premi s e s where the activities 
of the resident trainee arc taking place, the rcsi 
dent trainee shall not be deemed to be supervised 
as required by this Rule. 

(b) Duly certified resident trainees in training 
for funeral service or for funeral directing, while 
participating in learning experiences and while 
supervised by a person licensed by the Board as a 
preneed sales licensee, may also assist in the 



preneed funeral planning activities described in 21 
NCAC 34D .0202(b)(1), (2), (4) and (5). 

(c) When a resident trainee assists in funeral 
service, funeral directing, embalming or preneed 
funeral planning in or on the premises of a funeral 
home, the licensed supervisor shall be on the 
funeral home premises where and while such 
activities are performed. When a resident trainee 
assists in funeral service, funeral directing, em- 
balming or preneed funeral planning off the funer- 
al home premises, such activities shall be per- 
formed only in the presence of the licensed super- 
visor. 

(d) The licensed supervisor shall review with the 
purchaser any contract negotiated by a resident 
trainee, and then the licensed supervisor shall 
obtain the purchaser's signature on the contract in 
the licensed supervisor's presence. 

(e) The resident trainee's license certificate for 
indicating the trainee's authority to assist in the 
activities described and authorized in this Rule and 
in 21 NCAC 34D .0202(b) is the resident trainee 
pocket certificate. 

Statutory Authority G.S. 90-21 0.23(a); 90- 



.0110 REPORTS ON WORK 

The resident trainee shall submit a report to the 
Board every three months on forms provided by 
the Board listing the work performed assisted jn 
during the preceding three months. Such reports 
shall include the dates and a description of the 
work and must be certified as correct by the 
licensee under whom the trainee served during the 
period and by the manager of the funeral establish- 
ment. The names of the deceased persons persons, 
and the names of the purchasers of preneed funeral 
contracts, on whose cases the trainee worked 
assisted and reported during traineeship must be 
retained by the trainee until his traineeship require- 
ment has been fulfilled, and during such time such 
information shall be subject to inspection by the 
Board or its authorized agent. Such reports must 
be filed in the office of the Board not later than the 
10th day of the calendar month which immediately 
follows the completion of each three-month period 
of resident traineeship. Failure to submit such 
reports when due shall be sufficient cause for 
suspension or revocation of the certificate of 
resident traineeship. 

Statutory Authority G.S. 90-21 0.23(a), (d), (f); 90- 
210.25(a) (4e) (4g); 90-210. 67(a); 90-21 0.69(a). 

.0120 TRAINEE FINAL AFFIDAVIT FORM 

Form BMS-10 is the resident trainee affidavit. 
It is used for certification by the supervising 
licensee that the trainee has served and performed 
certain work under him as required by G.S. 
90-2 10. 25 (a) (4). It contains space for the names 
of the licensee and the trainee; dates and place of 
service; and the number of funerals — er 
embalmings, or both, funerals, preneed funeral 
contracts and embalmings that the trainee has 
assisted in during traineeship. The form is filed 
with the Board upon ending resident traineeship 
with a licensed supervisor. 

Statutory Authority G.S. 90-210.23(a), (d), (f); 90- 
210.25(a) (4f); 90-210. 67(a); 90-21 0.69(a); 

.0126 FUNERAL DIRECTING AND 

FUNERAL SERVICE TRAINING 

To fulfill the requirements that funeral director 
and funeral service trainees shall assist in directing 
at least 25 funerals during resident traineeship, 
such trainees shall, under supervision, assist in aH 
of the components of "funeral directing," as 
defined in G.S. 90-210. 20(f), but as limited by 21 



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2171 



PROPOSED RULES 



NCAC 34B .0103; and to achieve this end such 
trainees shall assist in^ in at least 25 cases, activi- 
ties of arranging (whether performed at time of 
need or by assisting in preneed funeral planning 
activities or a combination) and, in at least 25 
cases, activities pertaining to the funeral ceremony 
and disposition of the body. 

Statutory Authority G.S. 90-21 0.20(f); 90- 
210.23(a), (d), (f); ~90-210.25(a)(4); 90-210.67(a); 
90-210. 69(a). 

SUBCHAPTER 34D - PRENEED 
FUNERAL CONTRACTS 

SECTION .0200 - LICENSING 

.0202 PRENEED SALES LICENSE 

(a) Subject to G.S. 90-210. 69(c), holding a 
funeral director's license, issued by the Board, or 
a funeral service license, issued by the Board, is 
the qualification to be eligible for a preneed sales 
license. 

(b) The preneed sales licensee may engage, 
under the preneed sales license, in the following 
preneed funeral planning activities, pursuant to the 
definition of "preneed funeral planning" in G.S. 
90-210.60(8): 

(1) show and explain written materials, 
including price lists and photographs, 
descriptive of the funeral services and 
merchandise and the preneed funeral 
plan or contract being offered; 

(2) explain the various types of funeral 
ceremonies and services and the quali- 
ties and characteristics of various kinds 
of funeral merchandise; 

(3) sell, on a preneed basis, funeral servic- 
es and merchandise; 

(4) record, on any form or otherwise, 
specific items of funeral services and 
merchandise selected on a preneed 
basis; 

(5) make funeral arrangements on a 
preneed basis; and 

(6) sign preneed contracts. 

No preneed funeral planning activities shall be 
engaged in by anyone other than a preneed sales 
licensee; licensee or a registered resident trainee in 
funeral service or funeral directing pursuant to 21 
NCAC 34B .0103(b); provided, however, no 
preneed sales license is required solely for the sale 
of an insurance policy, and in connection with 
such a sale, the salesperson shall not be deemed to 
have engaged in preneed funeral planning if, for 



the sole purpose of permitting a prospective pur- 
chaser to make an informed decision as to the 
amount of insurance desired, the salesperson 
shows only price lists of funeral services and 
merchandise. 

(c) A licensed funeral director or funeral service 
licensee wishing to apply for a preneed sales 
license shall submit to the Board the applicant's 
name, address, telephone number, funeral 
director's or funeral service license number, name 
and address of the preneed funeral establishment 
licensee or licensees on whose behalf the applicant 
will sell preneed funeral contracts, and the 
applicant's employment or agency relationship with 
the licensee or licensees. If the applicant proposes 
to sell on behalf of more than one preneed funeral 
establishment licensee, the applicant shall disclose 
information to satisfy the requirement of G.S. 
90-210. 67(a) that the preneed funeral establishment 
licensees be related by ownership or contract. 

(d) The Board shall issue to each preneed sales 
licensee a pocket card as certification of the 
preneed sales license. The preneed sales licensee 
shall carry the card while engaging in preneed 
funeral planning. The card shall indicate the 
names of the preneed funeral establishment licens- 
ees on whose behalf the preneed sales licensee is 
authorized to sell preneed funeral contracts, and if 
there is any change in the list of establishments on 
whose behalf the preneed sales licensee is autho- 
rized to sell, the preneed sales licensee shall make 
a new application for a preneed sales license and 
shall pay the application fee. 

(e) The preneed sales licensee shall sign and 
affix his or her preneed sales license number to 
each preneed funeral contract, which he or she 
sells, in the presence of the purchaser of the 
contract at the time of sale. 

Statutory Authority G.S. 90-210.25(a)(4); 90- 
210.67(a), (c); 90-21 0.69(a). 

Iiotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina State Board of 
Registration for Professional Engineers and Land 
Surveyors intends to amend rules cited as 21 
NCAC 56 .0403. .0502. .0505. .0602. .0606. 
.0802, .0804, .0901. - .0902. .1103, .1105 and 
. 1302. 

1 he proposed effective date of this action is May 



2172 



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PROPOSED RULES 



1, 1994. 

1 he public hearing will be conducted at 9:00 
a.m. on March 11, 1994 at 3620 Six Forks Road, 
Suite 300, Raleigh, North Carolina 27609. 

MXeason for Proposed Action: Set forth specific 
fees for initial applications and all exams, require 
professional seals on renewal forms, and to pro- 
vide for the practice of engineering and land 
surveying by limited liability companies. 

Ksomment Procedures: Persons interested may 
present written or oral statements relevant to the 
actions proposed at the hearing to be held as 
indicated above. Written statements not presented 
at the hearing should be submitted to the Board 's 
office before March 17, 1994. 

CHAPTER 56 - BOARD OF 

PROFESSIONAL ENGENDERS AND 

LAND SURVEYORS 

SECTION .0400 - RECORDS AND 

REPORTS OF BOARD: RETENTION 

AND DISPOSITION 

.0403 APPLICATION FILES 

Application files are reviewed on an annual 
basis. If an application has been pending for one 
year or more, notice will be given to the applicant 
of the status of the application file. If after notice 
the applicant does not wish to pursue the applica- 
tion or does not reply to the Board's inquiry within 
30 days after such notice, the file will be trans- 
ferred to the State Records Center maintained by 
the Department of Cultural Resources in Raleigh, 
North Carolina , and any unobligat e d fe eti return e d 
to th e applicant . 

Statutory Authority G.S. 89C-10(a); 89C-12. 

SECTION .0500 - PROFESSIONAL 
ENGEVEER 

.0502 APPLICATION PROCEDURE: 
ESTJIVIDUAL 

(a) General. A person desiring to become 
licensed as a Professional Engineer must make 
application to the Board on a form prescribed and 
furnished by the Board. 

(b) Request. A request for an appropriate 
application form may be made at the Board ad- 



dress, 
(c) Applicable Forms: 

(1) Student Form. This form requires the 
applicant to set forth his personal histo- 
ry, his educational background, provide 
character references, and furnish a 
photograph for identification purposes. 
The form is for use by those graduat- 
ing, or those having graduated, from an 
engineering curriculum approved by the 
Board as follows: 

(A) Students graduating in the same se- 
mester or quarter in which the funda- 
mentals of engineering examination is 
administered. 

(B) Graduates with less than two years 
since graduation. 

(2) Professional Engineer Form: 

(A) All persons, including comity appli- 
cants and graduates of an engineering 
curriculum approved by the Board 
with more than two years progressive 
engineering experience, shall apply 
for registration by using the Profes- 
sional Engineer form. The submis- 
sion of this form will signify that the 
applicant seeks registration, and will 
result in seating for each examination 
required, when the applicant is so 
qualified. This form requires the 
applicant to set forth his personal and 
educational background, his engineer- 
ing experience and his character 
references. A passport-type photo- 
graph for identification purposes is 
required. 

(B) Persons who have previously complet- 
ed the fundamentals examination by 
use of the Student Form will submit 
the Professional Engineer Form to 
request registration when qualified to 
take the final eight-hour examination. 

(3) Supplemental Form. Persons who 
initially applied for the fundamentals of 
engineering exam using the Professional 
Engineer form must supplement their 
initial application upon applying for the 
principles and practice examination. 
The supplemental form requires that 
engineering experience from the date of 
the initial application until the date of 
the supplemental application be listed. 
Five references shall be submitted 
which are current to within one year of 
the examination date. 



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February 15, 1994 



2173 



PROPOSED RULES 



(4) Reference Forms: 

(A) Persons applying to take the examina- 
tion for fundamentals of engineering 
must submit to the Board names of 
three individuals who are familiar 
with the applicant's work, character 
and reputation. One of these individ- 
uals must be registered as a Profes- 
sional Engineer. Persons applying to 
take the examination for principles 
and practices of engineering must 
submit to the Board names of five 
individuals who are familiar with the 
applicant's work, character and repu- 
tation. Two of these individuals must 
be registered Professional Engineers. 

(B) In addition to the applicant submitting 
names to the Board of individuals 
familiar with the applicant's work, 
character and reputation, those indi- 
viduals listed are required to submit 
to the Board their evaluation of the 
applicant on forms supplied them by 
the applicant. Such information is 
considered confidential and will not 
be released by the Board. 

(C) The reference form requires the indi- 
vidual evaluating the applicant to state 
the evaluating individual's profession, 
his knowledge of the applicant and to 
state other information concerning the 
applicant's engineering experience, 
character and reputation. 

(D) The reference forms will be received 
by the applicant when he receives his 
application. The reference forms are 
then to be distributed by the applicant 
to the persons listed by him on his 
application as references. It is the 
applicant's responsibility to see that 
the individuals listed as references 
return the reference forms to the 
Board prior to the filing deadline for 
the examination. 



(d) Fees: 
(1) 



Student Form. The registration exami- 
nation fee of thirty dollars ($30.00) for 
applicants applying for examination on 
the fundamentals of engineering using 
the student form is payable with the 
filing of the application. Once the 
applicant passes the examination on the 
fundamentals of engineering, the regis- 
tration fee of one hundred dollars 
($100.00) and the examination fee for 



the principles and practice of 
engineering examination is applied 
toward payable with the applicant's 
subsequent application for registration 
as a Professional Engineer using the 
Professional Engineer form. 

(2) Professional Engineer Form. The 
registration fee of one hundred dollars 
($100.00) and appropriate examination 
fee for applicants applying for the 
examination on the fundamentals of 
engineering or the principles and 
practice of engineering using the 
Professional Engineer form is payable 
with the filing of the application. 

(3) Comity. The registration fee of one 
hundred dollars ($100.00) for applicants 
for comity registration is payable with 
the filing of the application. 

(4) Re-Examination. The registration 
examination fee for any applicant -who 
is re examined is payable with the filing 
of the application for re examination in 
accordance with the following schedule: 

(A) Engineering Fundamentals $30.00 
(B-) — Land Surveying Fundamentals $50.00 

(B) (€) Engineering Principles & Practice 
$70.00 

fE» — Land Surveying Principles & Practic e 

$60.00 

(e) The Board will accept the records maintained 

by the National Council of Examiners for 

Engineering and Surveying (NCEES) as evidence 

of registration in another state. 

Statutory Authority G.S. 89C-10; 89C-13; 89C-14. 

.0505 EXPIRATIONS AND RENEWALS 
OF CERTIFICATES 

(a) Professional Engineer Registration. An 
annual renewal fee of thirty five dollars ($35.00) 
for certificates of registration for Professional 
Engineers shall be payable to the Board. The 
Board will send to each registered Professional 
Engineer a form which requires the registrant to 
provide the Board with his business and residential 
address and to affix the registrant's North Carolina 
Professional Engineer's seal thereupon . The 
completed form for renewal of certificate along 
with the required fee is to be forwarded to the 
Board. 

(b) Engineer-In-Training Certificate. The 
Engineer-In-Training certificate does not expire 
and. therefore, does not have to be renewed. 



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PROPOSED RULES 



Statutory Authority G.S. 89C-10; 89C-17. 

SECTION .0600 - LAND 
SURVEYOR 

.0602 APPLICATION PROCEDURE: 
INDIVIDUAL 

(a) General. A person desiring to become a 
Registered Land Surveyor must make application 
to the Board on a form prescribed and furnished 
by the Board. 

(b) Request. A request for the application form 
may be made at the Board address. 

(c) Application Form. All persons applying to 
be licensed as a Registered Land Surveyor shall 
apply using the standard application form. This 
form requires the applicant to set forth his personal 
background, plus his educational background, his 
land surveying experience, and his references. A 
passport-type photograph for identification 
purposes is required also. 

(d) Supplemental Form. Persons who initially 
applied for registration as a land surveyor, but 
were not eligible initially to be admitted to the 
examination for principles and practice of land 
surveying, must supplement their initial application 
upon ultimately applying for the second 
examination. The applicant must supplement his 
initial application by using the supplemental form, 
which requires him to list his land surveying 
experience from the date of the initial application, 
until the date of the supplemental application. 
Five references shall be submitted which are 
current to within one year of the examination date. 

(e) Reference Forms: 

(1) Persons applying to take the 
examination for the fundamentals of 
land surveying or the examination for 
principles and practice must submit to 
the Board names of individuals who are 
familiar with the applicant's work, 
character and reputation. The names 
are submitted by the applicant on the 
application form. 

(2) Persons applying for the fundamentals 
of land surveying examination must 
submit three references, one of which 
must be a Registered Land Surveyor. 
Persons applying for the principles and 
practice examination must submit five 
references, two of which must be a 
Registered Land Surveyor. 

(3) In addition to the applicant submitting 
names to the Board of such individuals, 
those individuals listed are required to 



(f) Fees: 

(1) 



submit to the Board their evaluation of 
the applicant on reference forms 
supplied them by the applicant. Such 
information is considered confidential 
and will not be released by the Board. 

(4) The reference form requires the 
individual evaluating the applicant to 
state the evaluating individual's 
profession, his knowledge of the 
applicant and other information 
concerning the applicant's land 
surveying experience, character and 
reputation. 

(5) The reference form will be received by 
the applicant when he receives his 
application for registration. The 
reference forms are then to be 
distributed by the applicant to the 
persons listed by him on his application 
as references. It is the applicant's 
responsibility to see that the individuals 
listed as references return the forms to 
the Board prior to the filing deadline 
for the examination applied for by the 
applicant. 

Regular. The registration fee of one 
hundred dollars ($100.00) and 
appropriated examination fee for those 
applying for registration based upon 
examination, experience, character and 
exhibit is payable with the filing of the 
application. 

(2) Comity. The registration fee of one 
hundred dollars ($100.00) and 
appropriate examination fee for those 
applying for registration based upon 
comity is payable with the filing of the 
application. 

(3) Re-Examination. Should an applicant 
be required to take an examination over 
again, the re examination fee is payable 

upon making a request fef 

re examination. The examination fee 
for any applicant is payable with the 
filing of the application in accordance 
with the following schedule: 

(A) Land Surveying Fundamentals $50.00 

(B) Land Surveying Principles & Practice 
$60.00 

Statutory Authority G.S. 89C-10; 89C-13; 89C-14. 

.0606 EXPIRATIONS AND RENEWALS 
OF CERTIFICATES 



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2175 



PROPOSED RULES 



(a) Registered Land Surveyor Registration. An 
annual renewal fee for certificates of registration 
for Registered Land Surveyors shall be payable to 
the Board. The Board will send each Registered 
Land Surveyor a form which requires the 
registrant to provide to the Board his business and 
residential address and to affix the registrant's 
North Carolina Registered Land Surveyor's seal 
thereupon . The completed form for renewal of 
certificate along with any required fee is to be 
forwarded to the Board. 

(b) Surveyor in Training Certificate. The 
Surveyor In Training certificate does not expire 
and, therefore, does not have to be renewed. 

Statutory Authority G.S. 89C-17. 

SECTION .0800 - FIRM REGISTRATION 

.0802 PROCEDURE 

(a) Request. A request for an application for 
registration as a professional corporation or 
professional limited liability company engaged in 
the practice of engineering or land surveying may 
be made at the Board address. 

(b) Applicable Form. All professional 
corporations and professional limited liability 
companies complying with the statutory 
requirements of G.S. 89C and a G.S. 55B and 
G.S. 57C which desire to practice engineering or 
land surveying shall apply by using a form 
prepared by the Board. This form requires the 
applicant, by and through its president or manager , 
to certify that it and the stockholders of the 
corporation or members of the limited liability 
company have complied with the provisions of the 
applicable provisions of the General Statutes and 
requires that the officers, directors, shareholders^ 
members and professional employees be listed on 
that application. 

(c) Certificate of Registration: 

(1) Upon receiving the profe s sional 
corporation application with registration 
fee of fifty, dollars ($50.00 ), the Board, 
after determining that the professional 
corporation firm has complied with the 
statutory requirements, will then issue 
a certificate of compliance to — the 
professional corporation . 

(2) The professional corporation firm , then, 
must forward , in accordance with G.S. 
55B. the certificate of compliance to the 
Secretary of State along with its articles 
of incorporation or articles of 
organization . 



(3) Upon approval by the Secretary of 
State, the professional corporation firm 
then must forward to the Board a 
certified copy of its articles of 
incorporation or articles of 
organization . 

(4) Upon receipt of the certified copy of 
the articles ef- — incorporation — of the 
professional corporation of the firm , if 
all statutory requirements have been 
met, the Board will approve the 

application ef- tke professional 

corporation and issue it the firm a 
certificate of registration. 

Statutory Authority G.S. 55B-4; 55B-10; 89C-10; 
89C-24. 

.0804 ANNUAL RENEWAL 

(a) Renewal. The certificate of registration for 
a professional corporation and limited liability 
company shall be renewed annually. 

(b) Expiration. The certificate of registration 
shall expire on the last day of December following 
its issuance by the Board and shall become invalid 
on that date unless renewed. 

(c) Written Application. Upon written 
application ef- — tke — corporation signed by its 
president or manager on a renewal form prescribed 
by the Board accompanied by the prescribed fee of 
twenty five dollars ($25.00), the Board shall renew 
the certificate of registration providing that the 
corporation firm has complied with all rules of the 
Board and Chapter 55B of the applicable General 
Statutes of North Carolina. The form will be 
mailed to all registrants in good standing prior to 
the end of the calendar year. 

(d) Failure of a corporation firm to renew its 
certificate of registration within one calendar year 
shall require the corporation firm to submit a new 
application for a new certificate of registration in 
accordance with all requirements of these rules and 
of all applicable statutes. 

Statutory Authority G.S. 89C-10; 89C-24; 55B-11. 

SECTION .0900 - BUSINESS 
ORGANIZATIONS: GENERAL 

.0901 OFFICES 

(a) Professional Engineering Services. Every 
firm, partnership ef, corporation or limited 
liability company which performs or offers to 
perform engineering services in the State of North 
Carolina shall have a resident registered 



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February 15, 1994 



PROPOSED RULES 



Professional Engineer in responsible charge in 
each separate office in which professional 
engineering services are performed or offered to 
be performed. 

(b) Land Surveying Services. Every firm, 
partnership ef corporation or limited liability 
company which performs or offers to perform land 
surveying services in the State of North Carolina 
shall have a resident Registered Land Surveyor in 
responsible charge in each separate office in which 
land surveying services are performed or offered 
to be performed. 

(c) Resident. A resident registered Professional 
Engineer or Registered Land Surveyor as used in 
this Rule, means a licensee who spends a majority 
of his normal working time in said place of 
business. A registered Professional Engineer or 
Registered Land Surveyor can be the resident 
licensee at only one place of business at one time. 

(d) No firm, partnership, ef corporation or 
limited liability company shall practice, or offer to 
practice either land surveying or engineering, 
unless there is a registered resident for that service 
in responsible charge at that said place of business. 
Advertisements, signs, letterheads, business cards, 
directories, or any other form of representation 
shall avoid any reference to any service that cannot 
be provided under the responsible charge of a 
properly qualified resident professional. 

Statutory Authority G.S. 89C-10; 89C-24. 

.0902 TITLES OF BUSINESS 
ORGANIZATIONS 

(a) Companies, partnerships, corporations, 
limited liability companies or any other business 
organization providing professional engineering or 
land surveying services in North Carolina shall not 
practice under a name that is misleading. Except 
as provided below, the title of engineering or land 
surveying companies, partnerships, or 
corporations, limited liability companies or any 
other business organization organized primarily to 
provide such professional services shall not contain 
the name of an individual not registered in North 
Carolina. 

(b) A firm may include in its title the name or 
names of one or more deceased or retired former 
members of the firm, provided that the firm submit 
a letter of request and explanation with its 
application to the Board, and that the Board finds 
as a fact that the use of the name is not 
misleading. 

Statutory Authority G.S. 55B-5; 89C-10; 89C-24. 



SECTION .1100- SEAL 

. 1 1 03 STANDARD CERTIFICATION 
REQUIREMENTS 

(a) Certification. The seal of a registrant on a 
map, drawing, plan, specification, plat, or report 
shall signify that it is the final work of the 
registrant unless the work is stamped or clearly 
marked as "preliminary work" as follows: 

(1) "Preliminary - Do not use for 
construction", 

(2) "Progress Drawings - Do not use for 
construction", 

(3) "Preliminary Plat - Not for recordation, 
conveyances, or sales "-r _, 

(4) "Final Drawing z Not released for 
construction". 

(b) Certification of Final Drawings. 
Certification is not required for "preliminary 
work." All other drawings or maps shall conform 
to the following: 

(1) Certification is required on 
reproducibles or original drawings. 

(2) The seal may be a rubber stamp, or 
other facsimile. 

(3) The registrant's signature must be 
placed over, or near, the seal on the 
original document. 

(4) The date of signing must be annotated 
on the original document. 

(5) All sheets of engineering and surveying 
drawings must be sealed. 

(6) The Registered Land Surveyor who 
performs a survey will be identified by 
name and registration number in all 
pertinent title descriptions or other 
technical documents. 

(c) Certification of Specifications and Reports. 
Certification is not required for "preliminary 
work." All other specifications and reports shall 
conform to the following: 

(1) Certification is required on original 
specifications. 

(2) The seal may be a rubber stamp, or 
other facsimile. 

(3) The registrant's signature must be 
placed over, or near, the seal on the 
original document. 

(4) The date of signing must be annotated 
on the original document. 

(5) The title sheet of engineering 
specifications or other reports must be 
sealed. 

Statutory Authority G.S. 89C-10; 89C-16. 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2177 



PROPOSED RULES 



.1105 FIRM SEAL 

The use of the corporate a seal by professional 
corporations a firm is not required for 
certification. The corporate A firm seal is not 
authorized for use in lieu of the required seal of a 
Professional Engineer or Registered Land 
Surveyor. When the corporate a firm seal is used, 
it does not relieve the individual registrant of the 
requirements and responsibilities pertaining to his 
seal. 

Statutory Authority G.S. 89C-10; 89C-16; 89C-24. 

SECTION .1300 - BOARD 
DISCIPLINARY PROCEDURES 

.1302 UNLAWFUL PRACTICE BY AN 
UNREGISTERED PERSON 

(a) General. Alleged unlawful practice by an 
unregistered person shall be subject to Board 
investigation and reference to an agency of the 
state for appropriate legal action. 

(b) Preferring Charges. Any person who 
believes that any person or corporation firm is in 
violation of the acts specified in G.S. 89C may 
prefer charges against that person or c orporation 
firm by setting forth in writing those charges and 
swearing to their authenticity. The charges are to 
be filed at the Board's office in Raleigh, North 
Carolina. 

(c) Preliminary or Threshold Determination: 

( 1 ) Upon receipt of a properly filed charge, 
an investigation is initiated. 

(2) In the discretion of the executive secre- 
tary, a field investigation may be per- 
formed without notifying any of the 
parties involved. 

(3) After preliminary evidence has been 
obtained, the matter is referred to the 
Board's review committee which is 
made up of the following individuals: 

(A) one member of the Board, 

(B) the legal counsel of the Board, 

(C) the executive secretary^ , and 
fD) — the violation s admini s trator . 

(4) The review committee is specifically 
delegated the responsibility of recom- 
mending to the Board whether there is 
probable cause to believe that a party 
against whom a charge has been 
brought in fact has violated the provi- 
sions of G.S. 89C. 

(5) Upon review of the available evidence, 
the review committee makes a threshold 
determination of the charges brought. 



The review committee then presents to 
the Board written recommendations 
that: 

(A) The investigation be continued, 

(B) The charge be dismissed as unfounded 
or trivial, 

(C) When the charge is admitted as true, 
the Board accept the admission of 
guilt by the person charged and order 
him not to commit in the future the 
specific act or acts admitted by him 
and, also, not to violate any of the 
acts of misconduct specified in the 
law at any time in the future, 

(D) The matter be referred to an appropri- 
ate agency for necessary legal action. 

(d) Board Decision. Notice of decision by the 
Board on recommendations of the review commit- 
tee shall be given to the party submitting the 
charge. 

Statutory Authority G.S. 89C-10; 89C-23. 



2178 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



RRC OBJECTIONS 



A he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



ADMINISTRATIVE HEARINGS 

Hearings Division 

26 NCAC 3 .0207 - Compensation of the Mediator 
Agency Revised Rule 

AGRICULTURE 

Aquaculture 

2 NCAC 53 .0001 - Aquaculture Licenses 
Agency Withdrew Rule 

COMMERCE 



RRC Objection 
Obj. Removed 



RRC Objection 



01/20/94 
01/20/94 



12/16/93 
01/20/94 



Banking Commission 

4 NCAC 3F .0202 - Permissible Investments 
Agency Responded 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

15A NCAC 7H .2002 - Approval Procedures 

Agency Responded 

No Action 

Agency Revised Rule 
15A NCAC 7H .2004 - General Conditions 

Agency Responded 

No Action 

Agency Revised Rule 

Environmental Management 



RRC Objection 
Obj. Cont'd 



12/16/93 
01/20/94 



RRC 


Objection 


09/17/93 


Obj. 


Cont'd 


10/21/93 


Obj. 


Cont 'd 


11/18/93 


Obj. 


Removed 


12/16/93 


RRC 


Objection 


09/17/93 


Obj. 


Cont 'd 


10/21/93 


Obj. 


Cont 'd 


11/18/93 


Obj. 


Removed 


12/16/93 



15 A NCAC 2D .0101 

Rule Returned to 
15ANCAC2D .0501 

Rule Returned to 
15 A NCAC 2D .0503 

Rule Returned to 
15 A NCAC 2D .0524 

Rule Returned to 
15ANCAC2D .0525 

Rule Returned to 



- Definitions 

Agency for Failure to Comply with APA G.S. 150B-21.4(b) 

- Compliance with Emission Control Standards 

Agency for Failure to Comply with APA G.S. 150B-21.4(b) 

- Particulates from Fuel Burning Indirect Heat Exchangers 
Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 

- New Source Performance Standards 

Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 

- National Emission Standards for Hazardous Air Pollutants 
Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 



01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2179 



RRC OBJECTIONS 



15 A NCAC 2D .0530 - Prevention of Significant Deterioration 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15A NCAC 2D .0531 - Sources in Nonattainment Areas 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2D .0532 - Sources Contributing to an Ambient Violation 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2D .0533 - Stack Height 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2D .0601 - Purpose and Scope 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2D .0801 - Purpose and Scope 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2D .0802 - Definitions 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2D .0803 - Highway Projects 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2D .0804 - Airport Facilities 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2D .0805 - Parking Facilities 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4fb) 
15 A NCAC 2D .0806 - Ambient Monitoring and Modeling Analysis 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2D .1109 - Case-By-Case Maximum Achievable Control Technology 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15A NCAC 2H .0601 - Purpose and Scope 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2H .0602 - Definitions 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2H .0603 - Applications 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2H .0604 - Final Action on Permit Applications 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2H .0605 - Issuance: Revocation: and Enforcement of Permits 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2l.4(b) 
15A NCAC 2H .0606 - Delegation of Authority 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2H .0607 - Copies of Referenced Documents 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2H .0609 - Permit Fees 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15 A NCAC 2Q .0101 - Required Air Quality Permits 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0102 - Activities Exempted from Permit Requirements 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0103 - Definitions 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0104 - Wliere to Obtain and File Permit Applications 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0105 - Copies of Referenced Documents 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0106 - Incorporation by Reference 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0107 - Confidential Information 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0108 - Delegation of Authority 



01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 



2180 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



RRC OBJECTIONS 



Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15 A NCAC 2Q .0109 - Compliance Schedule for Previously Exempted Activities 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0110 - Retention of Permit at Permitted Facility 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0111 - Applicability Determinations 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15A NCAC 2Q .0201 - Applicability 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15 A NCAC 2Q .0202 - Definitions 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0203 - Permit and Application Fees 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0204 - Inflation Adjustment 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15A NCAC 2Q .0205 - Other Adjustments 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0206 - Payment of Fees 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0207 - Annual Emissions Reporting 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0301 - Applicability 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0302 - Activities Exempted from Permit Requirements 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0303 - Definitions 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0304 - Applications 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0305 - Application Submittal Content 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0306 - Permits Requiring Public Participation 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15 A NCAC 2Q .0307 - Public Participation Procedures 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0308 - Final Action on Permit Applications 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0309 - Termination, Modification and Revocation of Permits 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0310 - Permitting of Numerous Similar Facilities 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2l.4(b) 
15 A NCAC 2Q .031 1 - Permitting of Facilities at Multiple Temporary Sites 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15 A NCAC 2Q .0401 - Applicability 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0402 - Definitions 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0403 - New Units Exemption 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15 A NCAC 2Q .0404 - Retired Units Exemption 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15A NCAC 2Q .0405 - Requirement to Apply 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0406 - Requirements for Permit Applications 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 



01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2181 



RRC OBJECTIONS 



15 A NCAC 2Q .0407 - Permit Application Shield and Binding Effect of Permit Application 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 01/20/94 

15 A NCAC 2Q .0408 - Compliance Plans 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0409 - Phase II Repowering Extensions 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 01/20/94 

15A NCAC 2Q .0410 - Permit Contents 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15 A NCAC 2Q .0411 - Standard Requirements 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15 A NCAC 2Q .0412 - Permit Shield 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15 A NCAC 2Q .0413 - Permit Revisions Generally 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 01/20/94 

15A NCAC 2Q .0414 - Permit Modifications 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0415 - Fast-Track Modifications 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0416 - Administrative Permit Amendment 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0417 - Automatic Permit Amendment 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 01/20/94 

ISA NCAC 2Q .0418- Permit Reopenings 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15 A NCAC 2Q .0501 - Purpose of Section and Requirement for a Permit 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0502 - Applicability- 
Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 
15A NCAC 2Q .0503 - Definitions 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15 A NCAC 2Q .0504 - Option for Obtaining Construction and Operation Permit 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0505 - Application Submittal Content 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0506 - Initial Permit Application Submittal 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0507 - Application 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0508 - Permit Content 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 01/20/94 

15 A NCAC 2Q .0509 - Permitting of Numerous Similar Facilities 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 01/20/94 

15A NCAC 2Q .0510 - Permitting of Facilities at Multiple Temporary Sites 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0511 - Synthetic Facilities 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0512 - Permit Shield and Application Shield 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15A NCAC 2Q .0513 - Permit Renewal and Expiration 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15 A NCAC 2Q .0514 - Administrative Permit Amendments 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15 A NCAC 2Q .0515 - Minor Permit Modifications 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 01/20/94 

15 A NCAC 2Q .0516 - Significant Permit Modification 



2182 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



RRC OBJECTIONS 



Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0517 - Reopening for Cause 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
ISA NCAC 2Q .0518 - Final Action 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0519 - Termination, Modification, Revocation of Permits 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15 A NCAC 2Q .0520 - Certification by Responsible Official 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
ISA NCAC 2Q .0521 - Public Participation 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0522 - Review by EPA and Affected States 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0523 - Changes Not Requiring Permit Revisions 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15A NCAC 2Q .0524 - Ownership Change 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15A NCAC 2Q .0601 - Purpose of Section and Requirement for a Permit 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0602 - Definitions 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0603 - Applications 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 A NCAC 2Q .0604 - Public Participation 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-2 1.4(b) 
15 A NCAC 2Q .0605 - Final Action on Permit Applications 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 
15 'A NCAC 2Q .0606 - Termination, Modification and Revocation of Permits 

Rule Returned to Agency for Failure to Comply with APA G.S. 150B-21.4(b) 



01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 
01/20/94 



Health: Epidemiology 



15 A NCAC 19A .0206 - Infection Control - Health Care Settings 

Agency Revised Rule 
15 A NCAC 19C .0703 - Method of Reporting 

Agency Revised Rule 
15 A NCAC 19H .0702 - Research Requests 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



12/16/93 
12/16/93 
12/16/93 
12/16/93 
01/20/94 
01/20/94 



Health: Personal Health 



15 A NCAC 21 A .0817 - Grant Proposals 
Agency Revised Rule 



RRC Objection 12/16/93 
Obj. Removed 12/16/93 



Laboratory Services 



15 A NCAC 20A .0006 - Fees 
Agency Revised Rule 



RRC Objection 12/16/93 
Obj. Removed 12/16/93 



Mining: Mineral Resources 



15 A NCAC 5 B .0003 - Procedures for Obtaining Permits: Bonding Reqs. 
Agency Revised Rule 



RRC Objection 12/16/93 
Obj. Removed 12/16/93 



Soil and Water Conservation Commission 



8:22 



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February 15, 1994 



2183 



RRC OBJECTIONS 



15 A NCAC 6F .0004 - Approved Best Management Practices (BMPs) 
ISA NCAC 6F .0005 - Technical Specialist Designation Procedure 

Solid Waste Management 

15A NCAC 13B .1705 - Design, Constr. /Operation /Structural Fill Facilities 

Agency Rexised Rule 
15 A NCAC 13B .1708- Other Uses for Coal Combustion By-products 

Agency Rexised Rule 
15A NCAC 13B .1710 - Annual Reporting 

Agency Rexised Rule 

HUMAN RESOURCES 

Aging 

10 NCAC 22T .0101 - Scope of Health Screening Services 
10 NCAC 22T .0201 - Provision of Health Screening Services 
10 NCAC 22V .0101 - Scope of Senior Companion 

Day Care Rule 

10 NCAC 46H .0104 - Target Populations 
Agency Revised Rule 

Facility Services 

10 NCAC 3R .1617 - Required Staffing and Staff Training 

Agency Rexised Rule 
10 NCAC 3R .2114 - Information Required of Applicant 

Agency Revised Rule 
10 NCAC 3R .3405 - Required Staffing and Staff Training 

Agency Revised Rule 
10 NCAC 3R .3505 - Required Staffing and Staff Training 

Agency Revised Rule 
10 NCAC 3R .3906 - Required Staffing and Staff Training 

Agency Rexised Rule 

Individual and Family Support 

10 NCAC 42 A .0605 - Locating a Bed and Securing Placement 
Agency Rexised Rule 

Mental Health: General 

10 NCAC 14J .0206 - Procedures: Seclusion, Restraints, or Isolation Time Out 
Agency Rexised Rule 

INSURANCE 

Financial Evaluation Division 



RRC Objection 01/20/94 
RRC Objection 01/20/94 



RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 



RRC Objection 01/20/94 
RRC Objection 01/20/94 
RRC Objection 01/20/94 



RRC Objection 01/20/94 
Obj. Removed 01/20/94 



RRC Objection 


01/20/94 


Obj. Removed 


01/20/94 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 



RRC Objection 01/20/94 
Obj. Removed 01/20/94 



RRC Objection 12/16/93 
Obj. Removed 12/16/93 



11 NCAC 11B .0611 - Deposits: Bonds: Excess Insurance - Groups 

Agency Revised Rule 
11 NCAC 1 1H .0011 - Insolvency or Hazardous Financial Condition 



RRC Objection 12/16/93 
Obj. Removed 12/16/93 
RRC Objection 1 1 II 8/93 



2184 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



RRC OBJECTIONS 



Agency Revised Rule 
Agency Revised Rule 

JUSTICE 

Departmental Rules 

12 NCAC 1 .0106 - ADA Dispute Resolution Procedure 
Agency Revised Rule 

Private Protective Services 

12 NCAC 7D .0108 - Law Enforcement Officers Special Provisions 

No Response from Agency 

Agency Withdrew Rule 
12 NCAC 7D .0203 - Renewal or Re-issue of Licenses and Trainee Permits 

Agency Revised Rule 
12 NCAC 7D .0401 - Experience Reqs. a Private Investigator License 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 
Dental Examiners 

21 NCAC 16D .0102 - Restrictions on Practice 

Agency Revised Rule 
21 NCAC 16H .0203 - Permitted Functions of Dental Assistant II 

Agency Revised Rule 
21 NCAC 16Q .0301 - Sedation Credentials and Permit 

Agency Revised Rule 

Landscape Architects 

21 NCAC 26 .0209 - Unprofessional Conduct 
21 NCAC 26 .0210 - Dishonest Practice 
21 NCAC 26 .0211 - Incompetence 

Opticians 

21 NCAC 40 .0202 - Registration of Place of Business 

Agency Revised Rule 
21 NCAC 40 .0314 - Apprenticeship and Internship Requirements: Registration 

Agency Revised Rule 

Refrigeration Examiners 

21 NCAC 60 .0210 - Special Examination 
Agency Revised Rule 

Therapeutic Recreation 

21 NCAC 65 .0005 (Recodified as 21 NCAC 65 .0002)- Meetings 

Agency Revised Rule 
21 NCAC 65 .0008 (Recodified as 21 NCAC 65 .0004) - Academic -TRS Exam. 

Agency Revised Rule 



Obj. Cont'd 
Obj. Removed 



11/18/93 
12/16/93 



RRC Objection 
Obj. Removed 



12/16/93 
12/16/93 



RRC Objection 


11/18/93 


Obj. Cont'd 


12/16/93 




01/20/94 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



12/16/93 
12/16/93 
12/16/93 
12/16/93 
12/16/93 
12/16/93 



RRC Objection 01/20/94 
RRC Objection 01/20/94 
RRC Objection 01/20/94 



RRC Objection 12/16/93 

Obj. Removed 12/16/93 

RRC Objection 12/16/93 

Obj. Removed 12/16/93 



RRC Objection 
Obj. Removed 



01/20/94 
01/20/94 



RRC Objection 12/16/93 

Obj. Removed 12/16/93 

RRC Objection 12/16/93 

Obj. Removed 01/20/94 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2185 



RRC OBJECTIONS 



21 NCAC 65 .0011 (Recodified as 21 NCAC 65 .0007) - Cert. Ren. Eff. 7/1/95 RRC Objection 12/16/93 



Agency Revised Rule 
21 NCAC 65 .0013 (Recodified as 21 NCAC 65 .0008) - Revocation 
Agency Revised Rule 

TRANSPORTATION 



Obj. Removed 12/16/93 
RRC Objection 12/16/93 
Obj. Removed 12/16/93 



Division of Highways 



19A NCAC 2C .0102 - Minimum Standards for Secondary Roads 

Agency Revised Rule 
19A NCAC 2C .0103 - Addition of Roads to the Secondary Road System 

Agency Revised Rule 
19 A NCAC 2C .0204 - Utility Requirements for Subdivision Roads 

Agency Revised Rule 
19A NCAC 2C .0206 - Bridge and Dam Requirements for Subdivision Roads 

Agency Repealed Rule 
19A NCAC 2C .0211 - Street Intersections for Subdivision Streets 

Agency Repealed Rule 
I9A NCAC 2C .0213 - Subdivision Name Markers 

Agency Revised Rule 



RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 



Division of Motor Vehicles 



19A NCAC 3B .0620 - Grounds for Revocation or Denial of Certification 

Agency Revised Rule 
19A NCAC 3B .0621 - Denial/Revocation: Company Examiner: Instructor Cert. 

Agency Revised Rule 
19A NCAC 3C .0223 - Registration: Motor Homes: Etc. 

Rule Returned to Agency for Failure to Comply with APA 
19A NCAC 3C .0436 - Highway Use Tax 

Agency Revised Rule 
19A NCAC 3D .0231 - Hearings Pursuant to Articles 12 & 15 of Chapter 20 

Agency Revised Rule 
19A NCAC 3D .0515 - Safety Inspection Licensing and Procedures 
19A NCAC 3D .0602 - Collection of Assessments 

Agency Revised Rule 
19A NCAC 3D .0702 - Information for Manufacturer 

Agency Repealed Rule 
19A NCAC 3D .0823 - Vehicle Registration and Identification Required 

Agency Revised Rule 
19 A NCAC 3D .0825 - Reproduction of Forms 

Agency Revised Rule 
19A NCAC 3G .0205 - Issuing of Original Certificate 

Agency Revised Rule 
19 A NCAC 31 .0505 - Confidentiality 

Agency Revised Rule 
19A NCAC 3J .0202 - Original Application 

Agency Revised Rule 
19A NCAC 3 J .0604 - Contract Provisions 

Agency Revised Rule 



RRC Objection 


11/18/93 


Obj. Removed 


12/16/93 


RRC Objection 


11/18/93 


Obj. Removed 


12/16/93 




11/18/93 


RRC Objection 


11/18/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


11/18/93 


Obj. Removed 


12/16/93 


RRC Objection 


11/18/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 


RRC Objection 


12/16/93 


Obj. Removed 


12/16/93 



2186 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



10 NCAC 261 .0101 - PURPOSE: SCOPE AND NOTICE OF CHANGE IN LEVEL OF CARE 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 261 .0101 void as applied in Dorothy McNeil Moore v. N. C Department of Human Resources, Division 
of Medical Assistance (93 DHR 1342). 

10 NCAC 261 .0102 - REQUEST FOR RECONSIDERATION AND RECIPIENT APPEALS 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 261 .0102 void as applied in Dorothy McNeil Moore v. N. C. Department of Human Resources, Division 
of Medical Assistance (93 DHR 1342). 

10 NCAC 261 .0104 - FORMAL APPEALS 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 261 .0104 void as applied in Dorothy McNeil Moore v. N. C. Department of Human Resources, Division 
of Medical Assistance (93 DHR 1342). 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2187 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



( 



\GENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

LMS Express, Inc. v. Administration, Div of Purchase & Contract 

Stauffer Information Systems v. Community Colleges & Administration 

McLaurin Parking Co. v. Administration 

Warren H. Arlington Jr. v. Division of Purchase &. Contract 

Travel, Incorporated v. Administration 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Comm. v. Ann Oldham McDowell 
Curtis Ray Lynch v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Ezra Everett Rigshee 
Alcoholic Beverage Control Comm. V. Partnership, Phillip Owen Edward 
Alcoholic Beverage Control Comm. V. Gary Morgan Neugent 
Alcoholic Beverage Control Comm. v. Azzat Aly Amer 
Alcoholic Beverage Control Comm. v. Kirby Ronald Eldridge 
Alcoholic Beverage Control Comm. v. Gloria Black McDuffie 
Alcoholic Beverage Control Comm. v, Larry Isacc Hailstock 
Alcoholic Beverage Control Comm. v. Anthony Ralph Cecchini Jr. 
Johnnie L. Baker v. Alcoholic Beverage Control Commission 
RAMSAC Enterprises, Inc. v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Aubrey Rudolph Wallace 
Alcoholic Beverage Control Comm. v. Mermaid, Inc. 
Alcoholic Beverage Control Comm. v. Majdi Khalid Wand an 
Cornelius Hines T/A Ebony Lounge v. Alcoholic Beverage Ctl. Comm. 
Alcoholic Beverage Control Comm. v. Homer Patrick Godwin Jr. 
Alcoholic Beverage Control Comm. v. Wanda Lou Ball 
Charles Anthonious Morant v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Billy Ftncher McSwain Jr. 
Jean Hoggard Askew v. Alcoholic Beverage Control Commission 
Nizar Yusuf Yousef v. Alcoholic Beverage Control Commission 
ABC Comm. v. Partnership /T/A Corrothers Comty Ctr & Private Club 
Alcoholic Beverage Control Comm. v. James Elwood Alphin 
Alcoholic Beverage Control Comm. v. James William Campbell 
Alcoholic Beverage Control Comm. v. Sydner Jan Mulder 
Barbara Locklear v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Nizar Yusuf Yousef 
Alcoholic Beverage Control Comm. v. Partnership, T/A Hawk's Landing 
Alcoholic Beverage Control Com. v. Thomas Andrew Reid 
Zachary Andre Jones v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Mack Ray Chapman 
Alcoholic Beverage Control Comm. v. Bistro Enterprises, Inc. 
Alcoholic Beverage Control Comm. v. Richard Donald James Jr. 
Alcoholic Beverage Control Comm. v. George Oliver O'Neal HI 
Alcoholic Beverage Control Comm. v. The Sideline o( Wilmington, Inc. 
William Vernon Franklin & Gene Carroll Daniels v. ABC Commission 
Pink Bell v. ABC Commission 
Alcoholic Beverage Control Comm. v. Joseph Adu 
Alcoholic Beverage Control Comm. v. Citizens Fuel Company 
Alcoholic Beverage Control Comm. v. Citizens Fuel Company 
Alcoholic Beverage Control Comm. v. Mohammad Salim Pirini 



92 DOA 0735 
92 DOA 0803 

92 DOA 1662 

93 DOA 0132 

93 DOA 0362 



Morgan 06/04/93 

West 06/10/93 

Morrison 04/02/93 

West 07/21/93 

Nesnow 11/08/93 



1:7 NCR 613 
1:3 NCR 320 



92 ABC 0260 


Morgan 


04/01/93 




92 ABC 0288 


Gray 


05/18/93 




92 ABC 0702 


West 


07/30/93 




92 ABC 0978 


Gray 


05/28/93 




92 ABC 1086 


Bee ton 


03/22/93 




92 ABC 1149 


Reilly 


09/01/93 




92 ABC 1153 


Chess 


04/26/93 




92 ABC 1476 


West 


05/26/93 




92 ABC 1483 


Reilly 


04/07/93 




92 ABC 1690 


Morgan 


06/29/93 




92 ABC 1735 


Chess 


05/07/93 




93 ABC 0002 


Morrison 


07/02/93 




93 ABC 0047 


Gray 


05/28/93 




93 ABC 0076 


Gray 


08/04/93 




93 ABC 0087 


Becton 


07/06/93 


8:9 NCR 785 


93 ABC 0118 


Morrison 


08/04/93 




93 ABC 0125 


Reilly 


05/13/93 




93 ABC 0182 


New now 


07/29/93 




93 ABC 0232 


Chess 


07/20/93 




93 ABC 0239 


Gray 


08/26/93 




93 ABC 0255 


West 


09/10/93 




93 ABC 0280" 14 


Morgan 


01/31/94 




93 ABC 0318 


Reilly 


07/22/93 




93 ABC 0326 


Gray 


08/26/93 




93 ABC 0327 


Gray 


08/09/93 




93 ABC 0354 


Morgan 


11/10/93 


8:17 NCR 1712 


93 ABC 0395 


West 


09/14/93 




93 ABC 0399*" 


Morgan 


01/31/94 




93 ABC 0407 


Becton 


10/18/93 




93 ABC 0408 


Gray 


11/01/93 




93 ABC 0421 


West 


09/13/93 




93 ABC 0423 


Gray 


09/17/93 




93 ABC 0430 


Reilly 


10/07/93 




93 ABC 0431 


Nesnow 


09/01/93 




93 ABC 0433 


Morgan 


11/01/93 


8:16 NCR 1553 


93 ABC 0462 


Becton 


10/27/93 




93 ABC 0570 


Reilly 


09/17/93 




93 ABC 0595 


Morgan 


12/20/93 




93 ABC 0601 


Nesnow 


10/28/93 


8:16 NCR 1560 


93 ABC 0611 


West 


10/12/93 




93 ABC 0613 


West 


10/11/93 




93 ABC 0616 


West 


10/13/93 





( 



* Consolidated cases. 



2188 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



Linda R. Cunningham v. Alcoholic Beverage Control Commission 
Charles Edward Hare, Club Paradise v. Alcoholic Beverage CM. Comm. 
Alcoholic Beverage Control Comm. v. Katherine Mary Dufresne 
Alcoholic Beverage Control Comm. v. Utilities Control, Inc. 
Nasseem Medhat Awartani v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Jerome Hill T/A Corner Pocket 
Venus L. Smith v. Alcoholic Beverage Control Commission 
Alcohlic Beverage Control Comm. v. Partnership t/a RJ's Store 
Alcholic Beverage Control Comm. v. Ervin Ray Winstead 
Alcoholic Bev. Control Comm. v. Mild &. Wild, Inc., Sheila Scholz 



CASE 




DATE OF 


NUMBER 


ALJ 


DECLSION 


93 ABC 0633 


Morrison 


11/03/93 


93 ABC 0644 


Gray 


08/10/93 


93 ABC 0667 


Reilly 


12/13/93 


93 ABC 0861 


Mann 


01/24/94 


93 ABC 0959 


Chess 


01/13/94 


93 ABC 0672 


Gray 


11/23/93 


93 ABC 0701 


Bee ton 


12/08/93 


93 ABC 0860 


Mann 


09/29/93 


93 ABC 0890 


Chess 


12/30/93 


93 ABC 1475 


Nesnow 


03/23/93 



PUBLISHED DECISION 
REGISTER CITATION 



8:22 NCR 2198 



COMMERCE 

Lester Moore v. Weatherization Assistance Program 

CRIME CONTROL AND PUBLIC SAFETY 

George W. Paylor v. Crime Victims Compensation Comm. 
Steven A. Barner v. Crime Victims Compensation Comm. 
Anthony L. Hart v. Victims Compensation Comm. 
Jennifer Ayers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
Isahelle Hyman v. Crime Victims Compensation Comm. 
James G. Pellom v. Crime Control & Public Safety 
Norman E. Brown v. Victims Compensation Commission 
Moses H. Cone Mem Hosp v. Victims Compensation Comm. 
David &. Jane Spano v. Crime Control & Public Safety 
Phillip Edward Moore v. Crime Control & Public Safety 
Norma Jean Purkett v. Crime Victims Compensation Comm. 
Sheila Carter v. Crime Control and Public Safety 
John Willie Leach v. Crime Victims Compensation Comm. 
Nellie R. Mangum v. Crime Victims Compensation Comm. 
Constance Brown v. Crime Victims Compensation Comm. 
Susan Coy v. Crime Victims Compensation Commission 
Mark A. McCrimmon v. Crime Victims Compensation Comm. 
Rendall K. Rothrock v. Crime Victims Compensation Comm. 
John Pressley Moore v. Crime Victims Compensation Comm. 
Dollie F. McMillan v. Victims Compensation 

EMPLOYMENT SECURITY COMMISSION 



93 COM 0105 Gray 



03/08/93 



91 CPS 1286 


Morgan 


04/27/93 




92 CPS 0453 


Nesnow 


06/01/93 




92 CPS 0937 


Chess 


03/01/93 




92 CPS 1195 


Reilly 


03/19/93 




92 CPS 1787 


Reilly 


03/26/93 




92 CPS 1807 


Morrison 


05/24/93 




93 CPS 0034 


Gray 


05/05/93 




93 CPS 0141 


West 


07/07/93 




93 CPS 0152 


Nesnow 


04/02/93 


8:3 NCR 327 


93 CPS 0160 


Nesnow 


07/30/93 


8:10 NCR 862 


93 CPS 0169 


Nesnow 


05/20/93 




93 CPS 0205 


West 


08/27/93 


8:12 NCR 1171 


93 CPS 0249 


Morgan 


08/25/93 




93 CPS 0263 


Morrison 


05/20/93 




93 CPS 0303 


Morrison 


06/08/93 




93 CPS 0351 


Reilly 


05/24/93 




93 CPS 0623 


Reilly 


09/22/93 




93 CPS 0652 


Bee ton 


12/20/93 


8:20 NCR 2016 


93 CPS 0821 


West 


12/28/93 




93 CPS 1405 


Morrison 


12/29/93 




93 CPS 1717 


Nesnow 


01/24/94 





William H. Peace IU v. Employment Security Commission 

ENVmONMENT. IDZALTH. AND NATURAL RESOURCES 

Charles L. Wilson v. Environment, Health, &. Natural Resources 
J. Bruce Mulligan v. Environment, Health, &. Natrual Resources 
Calvin Blythe Davis & George Thomas Davis v. EHR 
Michael D. Barnes v. Onslow Cty Hlth & Environment and EHR 
William E. Finck v. Environment, Health, & Natural Resources 
Utley C. Stallings v. Environment, Health, & Natural Resources 
Dora Mae Blount on behalf of Joseph T. Midgette v. Hyde Cty 

Bd/Commissioners, Hyde Cty Bd/Health, & Environment, 

Health, & Natural Resources 
Thomas G McHugh v. DEHNR 

A.J. Ballard Jr., Tire & Oil Co., Inc. v. Env., Health, & Nat. Res. 
Safeway Removal, Inc. v. Environment, Health, & Natural Res. 
White Oak Chapter of the Izaak Walton League, Inc., and 

National Parks and Conservation Association, Inc. v. 

Division of Solid Waste Management, EHR and Haywood County 
Southchem, Inc. v. Environment, Health, &. Natural Resources 
Elizabeth City/ftisquotank Cty Mun Airport Auth v. EHNR 
WE. Moulton & Wife, Evelyn Moulton v. Macon County Health Dept. 
Interstate Brands Corp & Donald Letfew v. Env., Health, & Nat. Res. 
Service Oil Company v. Environment, Health, & Natural Resources 
Interstate Brands Corp & Donald Leffew v. Env., Health, & Nat. Res. 
Residents of Camm &. Shell v. Health Environmental - Septic Tank Div. 
City of Salisbury v. Environment, Health, & Natural Resources 



91 EEO0536 



Chess 



10/12/93 



8:19 NCR 1914 



91 EHR 0664 


Morgan 


03/23/93 


91 EHR 0773 


West 


07/13/93 


91 EHR 0794 


Morrison 


12/02/93 


91 EHR 0825 


Morgan 


06/2 1 /93 


92 EHR 0040 


Gray 


06/14/93 


92 EHR 0062 


Gray 


03/15/93 


92 EHR 0400 


Gray 


10/15/93 


92 EHR 0742 


Bee ton 


12/28/93 


92 EHR 0754 


Nesnow 


08/30/93 


92 EHR 0826 


West 


03/12/93 


92 EHR 0881 


West 


09/14/93 


92 EHR 0925 


Chess 


11/08/93 


92 EHR 1140 


Gray 


04/13/93 


92 EHR 1144 


Morgan 


11/15/93 


92 EHR 1201*" 


Reilly 


08/12/93 


92 EHR 1205 


Reilly 


05/27/93 


92 EHR 1224*" 


Reilly 


08/12/93 


92 EHR 1462 


Morrison 


08/25/93 


92 EHR 1472 


Morrison 


04/22/93 



8:1 NCR 83 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2189 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Willie M. Watford v. Hertford Gates District Health Department 
Standard Speciality Contractors, Inc. v. EHNR 
Shawqi A. Jaber v. Environment, Health, & Natural Resources 
McLeod Leather & Belting Co., Inc. v. Env., Health, & Natural Res. 
Angela Power, Albert Power v. Children's Special Health Svcs. 
Rayco Utilities, Inc. v. Environment, Health, & Natural Resources 
Erby Lamar Grainger v. Environment, Health, &. Natural Resources 
Mustafa E. Essa v. Environment, Health. & Natural Resources 
A.J. Holt v. Public Water Supply Section, Div. of Environmental Health 
Charlie Garfield McPhetson Swine Farm v. Env., Health, & Nat. Res. 
Keith Cutler, Kathryn Cutler v. Environment, Health, & Natural Res. 
Rosetta Brimage, Vanessa Pack v. Env. Health of Craven County 
R.L. Stowe Mills, Inc. v. Environment, Health. & Natural Resources 
O.C. Stafford/Larry Haney v. Montgomery Cty. Health Dept. 
Patricia Y. Marshall v. Montgomery Cty Health Dept. & EHR 
Fred M. Grooms v. Environment, Health. & Natural Resources 
Bobby Anderson v. Environment, Health, & Natural Resources 
Shell Bros. Dist., Inc. v. Environment, Health, &. Natural Resources 
Fred C. Gosnell & wife, Patricia T. Gosnell v. Env., Health, & Nat. Res. 
Holding Bros., Inc. v. Environment, Health, & Natural Resources 
Tony Tomson, Diane Clase &. William J. Stevenson v. EHR 
Tony Tomson. Diane Clase &. William J. Stevenson v. EHR 
Hamilton Beach/Proctor-Silex, Inc. v. Environment, Health, & Natrl Res 
Tim Whitfield v. Environment, Health. &. Natural Resources 
Tony Worrell v. Environment, Health. & Natural Resources 
L. Terry Fuqua v. Environment. Health, & Natural Resources 
Seth B. Gaskill Jr. v. N.C. Coastal Resources Commission 
World Omni Development v. Environment, Health, & Natural Resources 
Jimmy Hough v. Environment, Health, & Natural Resources 
Richard L. Goodman v. Environment, Health, & Natural Resources 
Monroe Gaskill v. DEHNR-Div. of Coastal Management 
C.J. Ramey & wife, Diane B. Ramey & Hubbaid Realty of 
Winston Salem, Inc. v. Environment, Health, & Natural Resources 
Lanny Clifton, Southwind Dev., Co. v. Div. of Environmental Mgmt. 
Blue Ridge Env. Defense League, Inc. v. Env., Health, & Natrl Res 
Charles Watson v. DEHNR 

Heatcraft Inc. v. Environment, Health, & Natural Resources 
Ralph West-Land Owner by Preston M. Bralcher v. EHR 



92 EHR 1600 


Chess 


03/24/93 


92 EHR 1660 


Reilly 


05/21/93 


92 EHR 1784 


Bee ton 


07/07/93 


93 EHR 0003 


Morgan 


10/11/93 


93 EHR 0008 


Bee ton 


03/24/93 


93 EHR 0063 


Morrison 


09/17/93 


93 EHR 0071 


Reilly 


06/21/93 


93 EHR 0146 


Gray 


03/29/93 


93 EHR 0168 


West 


10/25/93 


93 EHR 0181 


Reilly 


07/23/93 


93 EHR 0185 


Morrison 


10/20/93 


93 EHR 0206 


Nesnow 


05/20/93 


93 EHR 0219 


Morrison 


08/11/93 


93 EHR 0224 


Gray 


06/07/93 


93 EHR 0252 


Gray 


10/22/93 


93 EHR 0276 


West 


08/27/93 


93 EHR 0299 


Reilly 


06/07/93 


93 EHR 0308 


Bee ton 


05/18/93 


93 EHR 0340 


Bee ton 


08/11/93 


93 EHR 0380 


Nesnow 


08/03/93 


93 EHR 0466* 12 


Reilly 


11/30/93 


93 EHR 0467* 12 


Reilly 


11/30/93 


93 EHR 0477 


Reilly 


06/29/93 


93 EHR 0520 


Gray 


12/16/93 


93 EHR 0587 


Morgan 


11/08/93 


93 EHR 0624 


Reilly 


11/08/93 


93 EHR 0635 


Nesnow 


11/18/93 


93 EHR 0688 


Nesnow 


01/18/94 


93 EHR 0736 


Gray 


01/21/94 


93 EHR 0783 


Reilly 


11/24/93 


93 EHR 0802 


Chess 


10/13/93 


93 EHR 0808 


West 


01/31/94 


93 EHR 0848 


Bee ton 


10/20/93 


93 EHR 0862 


Nesnow 


10/11/93 


93 EHR 0981 


West 


12/20/93 


93 EHR 1021 


Morrison 


12/20/93 


93 EHR 1611 


Gray 


01/31/94 



8:15 NCR 1503 



8:10 NCR 870 



8:11 NCR 99b 



8:12 NCR 1176 



8:11 NCR 1001 



HUMAN RELATIONS COMMISSION 

Human Relations Comm. on behalf of Tyrone Clark v. Myrtle Wilson 92 HRC 0560 Becton 09/07/93 8:13 NCR 1287 

Human Relations Comm. on behalf of Marsha Crisco v. Hayden Morrison 93 HRC 0167 Reilly 08/18/93 8:12 NCR 1168 

HUMAN RESOURCES 



O.C. Williams v. Human Resources 

Ronald Terry Brown v. Human Resources 

Dennis K. King v. Human Resources 

Cathy Harris, A/K/A Cathy D. Grubb v. Human Resources 

Raymond L. Griffin v. Human Resources 

O.C. Williams v. Human Resources 

Michael L. Ray v. Human Resources 

Randy Chambliss v. Human Resources 

Melvin White v. Human Resources 

Joseph R. Kavaliauskas Jr. v. Human Resources 

Larry D. Boyd v. Human Resources 

Jefferson D. Boylen v. Human Resources 

Jeffery D. Williams v. Human Resources 

Jerry L. Summers v. Human Resources 

Samuel E. Massenberg Jr. v. Human Resources 

William A. Dixon v. Human Resources 

Gregory L. Washington v. Human Resources 

Edwin Clarke v. Human Resources 

Dwayne Allen v. Human Resources 

Edwin Ivestcr v. Human Resources 

Connie E Epps, Otis Junior Epps v. Human Resources 

Tyrone Aiken v. Human Resources 



91 CSE 0036* 2 


Morgan 


03/30/93 


91 CSE 0249 


Morgan 


05/17/93 


91 CSE 


1122 


Morgan 


07/28/93 


91 CSE 


1131 


Morgan 


08/24/93 


91 CSE 


1148 


Morgan 


08/24/93 


91 CSE 


1158* 2 


Morgan 


03/30/93 


91 CSE 


1173 


Morgan 


05/17/93 


91 CSE 


1187 


Morgan 


04/28/93 


91 CSE 


1192 


Morgan 


05/17/93 


91 CSE 


1204 


Morgan 


07/29/93 


91 CSE 


1214 


Morgan 


08/24/93 


91 CSE 


1217 


Morgan 


05/17/93 


91 CSE 


1231 


Morgan 


04/28/93 


91 CSE 


1234 


Morgan 


07/28/93 


91 CSE 


1249 


Morgan 


05/17/93 


91 CSE 


1277 


Morrison 


03/04/93 


92 CSE 0075 


Morgan 


04/01/93 


92 CSE 0129 


Morgan 


05/17/93 


92 CSE 0196 


Morgan 


03/31/93 


92 CSE 0268 


Nesnow 


03/30/93 


92 CSE 1182 


Reilly 


07/22/93 


92 CSE 


1217 


Gray 


06/17/93 



2190 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



Everett M. Eaton v. Human Resources 
Eugene Johnson v. Human Resources 
Edward E. Brandon v. Human Resources 
James Sisk Jr. v. Human Resources 
Thomas M. Birdwell ID v. Human Resources 
Darrell W. Russell v. Human Resources 
John Henry Byrd v. Human Resources 
Aaron James Alford v. Human Resources 
Michelle D. Mobley v. Human Resources 
Gus W. Long Jr. v. Human Resources 
Robert E. Watson v. Human Resources 
Connell R. Goodson v. Human Resources 
Byron Christopher Williams v. Human Resources 
Elijah G. Deanes v. Human Resources 
James W. Bell v. Human Resources 
Charles W. Stall Jr. v. Human Resources 
William A. Wilson HI v. Human Resources 
Eric Stanley Stokes v. Human Resources 
Clayton L. Littleton v. Human Resources 
Frank E. Johnson v. Human Resources 
David Rollins v. Human Resources 
Willie Sam Brown v. Human Resources 
Lyndell Greene v. Human Resources 
Charles Swann v. Human Resources 
Joe B. Reece v. Human Resources 
Michael Anthony Dean v. Human Resources 
Gregory W Alford v. Human Resources 
Leroy Snuggs v. Human Resources 
James P. Miller ID v. Human Resources 
Herbert H. Fordham v. Human Resources 
Jack Dulq v. Human Resources 
Jesse B. Williams v. Human Resources 
Johnny Victor Debity v. Human Resources 
Larry L. Crowder v. Human Resources 
Carlos Bernard Davis v. Human Resources 
Ocie C. Williams v. Human Resources 
Terrance Freeman v. Human Resources 
Floyd Excell Stafford v. Human Resources 
Timothy Brian Eller v. Human Resources 
Charles S. Ferrer v. Human Resources 
Ronald H. Lockley v. Human Resources 
Rene Thomas Rittenhouse v. Human Resources 
Thomas Edward Williamson v. Human Resources 
Roy Chester Robinson v. Human Resources 
Lynwood McClinton v. Human Resources 
Timothy Scott Long v. Human Resources 
Kenneth Lamar Massey v. Human Resources 
David W Williams v. Human Resources 
William E. Ingram v. Human Resources 
Harold R. Pledger v. Human Resources 
Kenneth Wayne Wiggins v. Human Resources 
Carl Beard v. Human Resources 
Henry Alston Jr. v. Human Resources 
Gary Lewis Doster v. Human Resources 
Raymond L. Head v. Human Resources 
Mark R. Charles v. Human Resources 
Michael W. Bentley v. Human Resources 
Robert D. Knoll Jr. v. Human Resources 
Dale Robert Stuhre v. Human Resources 
James T. Carter Jr. v. Human Resources 
Tommy Malone v. Human Resources 
James C. Dixon Jr. v. Human Resources 
Timothy R. Currenee v. Human Resources 
Wardell Walker v. Human Resources 
Wallace M. Cooper v. Human Resources 
Jarvis N. Price v. Human Resources 
Thomas L. Yates v. Human Resources 
Clearnce Ray Taylor v. Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


AL,[ 


DECISION REGISTER CITATION 


92 CSE 1221 


Reilly 


07/27/93 


92 CSE 1229 


Nesnow 


11/16/93 


92 CSE 1237 


Gray 


04/16/93 


92 CSE 1238 


Reilly 


11/17/93 


92 CSE 1240 


Reilly 


12/09/93 


92 CSE 1249 


Bee Ion 


04/20/93 


92 CSE 1250 


Reilly 


06/04/93 


92 CSE 1253 


Bee ton 


12/06/93 


92 CSE 1256 


Nesnow 


04/15/93 


92 CSE 1263 


Gray 


08/16/93 


92 CSE 1265 


Reilly 


05/06/93 


92 CSE 1267 


Gray 


12/07/93 


92 CSE 1270 


Nesnow 


04/26/93 


92 CSE 1273 


Nesnow 


11/17/93 


92 CSE 1311 


Nesnow 


05/10/93 


92 CSE 1313 


Mann 


07/06/93 


92 CSE 1315 


Reilly 


12/07/93 


92 CSE 1316* 3 


Reilly 


03/25/93 


92 CSE 1317 


Morrison 


09/02/93 


92 CSE 1326 


Reilly 


08/16/93 


92 CSE 1334 


Morrison 


05/06/93 


92 CSE 1338 


Morrison 


09/15/93 


92 CSE 1346 


Nesnow 


04/16/93 


92 CSE 1347 


West 


09/16/93 


92 CSE 1355 


Mann 


10/12/93 


92 CSE 1356 


Morrison 


08/13/93 


92 CSE 1358 


Gray 


10/18/93 


92 CSE 1360 


Morrison 


04/15/93 


92 CSE 1361 


Gray 


04/16/93 


92 CSE 1362 


Nesnow 


07/19/93 


92 CSE 1374 


Gray 


07/16/93 


92 CSE 1389 


Nesnow 


10/12/93 


92 CSE 1393 


Mann 


11/15/93 


92 CSE 1396 


Reilly 


04/15/93 


92 CSE 1404 


Reilly 


04/15/93 


92 CSE 1405 


Mann 


06/25/93 


92 CSE 1411 


Mann 


06/07/93 


92 CSE 1412 


Reilly 


08/31/93 


92 CSE 1414 


Reilly 


04/20/93 


92 CSE 1416 


Mann 


04/15/93 


92 CSE 1418 


Nesnow 


04/20/93 


92 CSE 1421 


Nesnow 


04/20/93 


92 CSE 1422 


Reilly 


04/20/93 


92 CSE 1423 


Reilly 


04/15/93 


92 CSE 1424 


Reilly 


09/15/93 


92 CSE 1445 


Bee ton 


06/29/93 


92 CSE 1447 


Reilly 


12/07/93 


92 CSE 1448 


Nesnow 


07/19/93 


92 CSE 1450 


Reilly 


04/15/93 


92 CSE 1455 


Morrison 


05/20/93 


92 CSE 1458 


Gray 


12/13/93 


92 CSE 1459 


Reilly 


09/08/93 


92 CSE 1460 


Bee ton 


06/29/93 


92 CSE 1461 


Morrison 


10/21/93 


92 CSE 1510 


Mann 


11/18/93 


92 CSE 1511 


Beelon 


11/17/93 


92 CSE 1512 


Nesnow 


06/09/93 


92 CSE 1515 


Nesnow 


11/17/93 


92 CSE 1516 


Reilly 


05/11/93 


92 CSE 1517 


Mann 


08/31/93 


92 CSE 1520 


Mann 


05/07/93 


92 CSE 1522 


Beelon 


05/11/93 


92 CSE 1523 


Reilly 


09/09/93 


92 CSE 1524 


Reilly 


10/12/93 


92 CSE 1527 


Reilly 


05/11/93 


92 CSE 1531 


Morrison 


05/12/93 


92 CSE 1535 


Gray 


05/10/93 


92 CSE 1538 


Morrison 


11/18/93 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2191 



CONTESTED CASE DECISIONS 



AGENCY 



Robert E. Tarllon Sr. v. Human Resources 
Rodney Devard demons v. Human Resources 
James A. Coleman v. Human Resources 
Lee Richard Jones v. Human Resources 
Romeo F. Skapple v. Human Resources 
Terrial W. Mayberry v. Human Resources 
Jeffrey L. Garrett v. Human Resources 
Edward Kirk v. Human Resources 
William C. Hubbard v. Human Resources 
William Michael Przybysz v. Human Resources 
Kevin Keith Witmore v. Human Resources 
George A. Rinell v. Human Resources 
Edward Fitch v. Human Resources 
David Robinetfc v. Human Resources 
Harvey H. Boyd v. Human Resources 
Kit C. Elmore v. Human Resources 
Brian C. Gilmore v. Human Resources 
Philip S. Piercy v. Human Resources 
Anthony McLaughlin v. Human Resources 
Johnny W. Cooke v. Human Resources 
Roland L. Essaff v. Human Resources 
Isaac Maxwell v. Human Resources 
Donald J. Ray v. Human Resources 
Barbara A. Chaperon v. Human Resources 
Kenneth Eugene Johnson v. Human Resources 
Derrick Carter v. Human Resources 
Charles Wayne Pierce v. Human Resources 
Gregory L. Vernoy v. Human Resources 
Donna G. Knotts v. Human Resources 
Robert Jerome Sutton v. Human Resources 
Donald R. Williams v. Human Resources 
McKinley Clyburn v. Human Resources 
Henry L. Taylor v. Human Resources 
Tony Thorpe v. Human Resources 
Jeffery D. Williams v. Human Resources 
Ronald Sowell v. Human Resources 
Billy Smith v. Human Resources 
Rawn Weigel v. Human Resources 
Anthony Curry v. Human Resources 
John G. Williams v. Human Resources 
Larry W. Golden v. Human Resources 
William J. Carter v. Human Resources 
Mark W Dean v. Human Resources 
Linda D. McDonald v. Human Resources 
Tyrone Thomas v. Human Resources 
Rilton E. May v. Human Resources 
Milton Kendricks v. Human Resources 
Joe K. Martin v. Human Resources 
Eric Stanley Stokes v. Human Resources 
Erskin J. Thompson v. Human Resources 
Larry Thompson v. Human Resources 
Billie J. Smith v. Human Resources 
Patrick Floyd v. Human Resources 
James Eric Frost v. Human Resources 
Dennis W. Nolan v. Human Resources 
Eric L. Garland v. Human Resources 
Ira Alston Jr. v. Human Resources 
Elvis Bernard Telfair v. Human Resources 
Ronald G. Bolden v. Human Resources 
Rodney H. Allen. MD v. Human Resources 
Donnell E. Byrd v. Human Resources 
Marvin Holley v. Human Resources 
Eddie Short v. Human Resources 
Michael Tywan Marsh v. Human Resources 
Leroy Jones v. Human Resources 
Antonio M. Townsend v. Human Resources 
Kevin J. Close v. Human Resources 
Norman Gatewood v. Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92 CSE 


1536 


Gray 


05/17/93 


92CSE 


1539 


Gray 


05/10/93 


92 CSE 


1540 


Reilly 


05/11/93 


92 CSE 


1541 


Reilly 


09/08/93 


92 CSE 


1545 


Gray 


04/26/93 


92 CSE 


1546 


Reilly 


10/12/93 


92 CSE 


1557 


Gray 


04/22/93 


92 CSE 


1560 


Gray 


06/29/93 


92 CSE 1562 


Mann 


05/12/93 


92 CSE 


1565 


Bee Ion 


07/23/93 


92 CSE 


1566 


Reilly 


11/01/93 


92 CSE 


1569 


Gray 


12/09/93 


92 CSE 1572 


Reilly 


05/11/93 


92 CSE 1573 


Mann 


07/14/93 


92 CSE 


1574 


Reilly 


12/09/93 


92 CSE 


1575 


Gray- 


07/16/93 


92 CSE 


1576 


Gray 


04/26/93 


92 CSE 


1577 


Gray 


07/16/93 


92 CSE 


1582 


Gray 


06/29/93 


92 CSE 


1585 


Bee ton 


05/11/93 


92 CSE 


1588 


Morrison 


07/26/93 


92 CSE 1589 


Reilly 


04/26/93 


92 CSE 


1592 


Mann 


05/19/93 


92 CSE 


1593 


Mann 


10/13/93 


92 CSE 1594 


Reilly 


11/01/93 


92 CSE 


1595 


Gray 


11/17/93 


92 CSE 


1596 


Morrison 


07/14/93 


92 CSE 


1610 


Gray 


11/09/93 


92 CSE 


1611 


Morrison 


07/16/93 


92 CSE 


1618 


Chess 


10/12/93 


92 CSE 


1622 


Nesnow 


08/04/93 


92 CSE 


1623 


Morrison 


05/20/93 


92 CSE 


1624 


Mann 


09/15/93 


92 CSE 


1625 


Chess 


07/15/93 


92 CSE 


1626 


Mann 


05/19/93 


92 CSE 


1627 


Reilly 


07/19/93 


92 CSE 


1629 


Reilly 


03/25/93 


92 CSE 


1630 


Mann 


11/18/93 


92 CSE 


1631 


Reilly 


03/25/93 


92 CSE 


1632 


Mann 


08/10/93 


92 CSE 


1633 


Reilly 


03/25/93 


92 CSE 


1637 


Nesnow 


05/19/93 


92 CSE 


1638 


Reilly 


07/15/93 


92 CSE 


1639 


Gray 


10/19/93 


92 CSE 


1640 


Mann 


07/22/93 


92 CSE 


1642 


Morgan 


07/29/93 


92 CSE 


1647 


Gray 


12/07/93 


92 CSE 1650 


Reilly 


09/10/93 


92 CSE 1652* 3 


Reilly 


03/25/93 


92 CSE 1653 


Gray 


11/17/93 


92 CSE 


1655 


Reilly 


07/22/93 


92 CSE 1656 


Gray 


07/23/93 


92 CSE 


1663 


Reilly 


05/20/93 


92 CSE 1669 


Mann 


11/18/93 


92 CSE 


1670 


Morrison 


06/25/93 


92 CSE 


1671 


Mann 


07/22/93 


92 CSE 


1703 


Bee ton 


06/16/93 


92 CSE 


1704 


Reilly 


09/15/93 


92 CSE 


1706 


Mann 


06/25/93 


92 CSE 


1707 


Morrison 


11/18/93 


92 CSE 


1712 


Chess 


10/22/93 


92 CSE 


1713 


Mann 


06/08/93 


92 CSE 


1714 


West 


07/15/93 


92 CSE 


1716 


Gray 


06/17/93 


92 CSE 


1718 


Gray 


06/17/93 


92 CSE 


1721 


Chess 


08/30/93 


92 CSE 


1727 


Chess 


08/30/93 


92 CSE 


1728 


Chess 


10/22/93 



PUBLISHED DECISION 
REGISTER CITATION 



2192 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



Thadius Bonapart v. Human Resources 

Ronald Norman v. Human Resources 

Joseph Eric Lewis v. Human Resources 

Ronald Dean Lowery v. Human Resources 

Tamera S. Hatfield v. Human Resources 

Michael Wayne Bryant v. Human Resources 

James E. Blakney v. Human Resources 

E. Burt Davis Jr. v. Human Resources 

Nelson Fowler Jr. v. Human Resources 

Oswinn Blue v. Human Resources 

Charles E. Whiteley v. Human Resources 

Kelvin D. Jackson v. Human Resources 

Linwood Staton v. Human Resources 

Anthony Watson v. Human Resources 

Eugene Polk v. Human Resources 

Steve R. Tallent v. Human Resources 

Charles A. Morgan v. Human Resources 

Glenda K. Hollifield v. Human Resources 

Quinton Brickhouse v. Human Resources 

Kenneth W. Williams v. Human Resources 

Charles Thompson Jr. v. Human Resources 

Wanda L. Cutiiberteon v. Human Resources 

Barbara W Catlett v. Human Resources 

Laurel Langford v. Human Resources 

Ida Diane Davis v. Human Resources 

Hatsuko Klein v. Human Resources 

Karen Mullins Martin v. Human Resources 

Ora Lee Brinkley v. David T. Flaherty, Secretary of Human Resources 

Leon Barbee v. Human Resources 

Carrolton of Dunn, Inc. v. Human Resources 

Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayetteville d/b/a Fayetteville Kidney Center, 
Webb-Lohavichan-Melton Rentals, Bio-Medical Applications 
of North Carolina, Inc., d/b/a BMA of Raeford and Webb- 
Lohavichan Rentals 

Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayetteville d/b/a Fayetteville Kidney Center, 
Webb-Lohavichan-Melton Rentals, Bio-Medical Applications 
of North Carolina. Inc., d/b/a BMA of Raeford and Webb- 
Lohavichan Rentals 

Bio-Medical Applications of North Carolina, Inc., d/b/a BMA 
of Raeford, Webb-Lohavichan-Melton Rentals, Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Fayetteville 
d/b/a Fayetteville Kidney Center and Webb-Lohavichan Rentals 
v. Human Resources, Division of Facility Services, Certificate of 
Need Section and Dialysis Care of North Carolina, Inc., d/b/a 
Dialysis Care of Hoke County 

Renal Care of Rocky Mount, Inc. v. Human Resources, Division of 
Facility Services, Certificate of Need Section, and Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Tarboro, 
Rocky Mount Nephrology Associates, Inc., Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Rocky Mount 
d/b/a Rocky Mount Kidney Center, and Rocky Mount Kidney Center 
Associates 

James H. Hunt Jr. v. Division of Medical Assistance 

Barbara Jones v. Human Resources 

Joyce P. Williams v. Human Resources 

Snoopy Day Care, Diane Hamby v. Child Day Care Licensing 

Cynthia Reed v. Human Resources 

The Neighborhood Center v. Human Resources 

Helm's Rest Home, Ron J. Schimpf/Edith H. Wilson v. Human Resources 

Jo Ann Kinsey v. NC Memorial Hospital Betty Hutton, Volunteer Svc. 

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc. 

Betty Butler v. Human Resources 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


92 CSE 1740 


Chess 


09/21/93 




92 CSE 1746 


Chess 


10/14/93 




92 CSE 1748 


Bee ton 


08/02/93 




92 CSE 1771 


West 


07/15/93 




92 CSE 1772 


Chess 


08/30/93 




92 CSE 1773 


Chess 


10/22/93 




92 CSE 1779 


Nesnow 


05/13/93 




92 CSE 1780 


Gray 


11/17/93 




93 CSE 0050 


Chess 


10/18/93 




93 CSE 0073 


Chess 


08/03/93 




93 CSE 0183 


Bee ton 


11/10/93 




93 CSE 0221 


West 


08/04/93 




93 CSE 0250 


Nesnow 


08/13/93 




93 CSE 0396 


Nesnow 


08/04/93 




93 CSE 0437 


Chess 


08/11/93 




93 CSE 0448 


West 


10/29/93 




93 CSE 0518 


West 


11/09/93 




93 CSE 0545 


West 


10/11/93 




93 CSE 0576 


Gray 


11/17/93 




93 CSE 0590 


Reilly 


10/18/93 




93 CSE 0696 


Morrison 


09/23/93 




93 CSE 1086 


Morrison 


01/27/94 




92 DCS 0577 


West 


03/15/93 




92 DCS 1181 


Gray 


05/04/93 


8:5 NCR 441 


92 DCS 1200 


Gray 


03/29/93 




92 DCS 1271 


Reilly 


05/05/93 




92 DCS 1783 


West 


08/04/93 




92 DHR 0608 


Chess 


08/27/93 




92 DHR 0658 


Morrison 


04/30/93 


8:4 NCR 392 


92 DHR 1101 


Morgan 


07/26/93 




92 DHR 1 109** 


Morgan 


06/22/93 


8:8 NCR 687 



92 DHR 1110* Morgan 06/22/93 



92 DHR 1116* Morgan 06/22/93 



92 DHR 1120 



Gray 



06/18/93 



8:8 NCR 687 



8:8 NCR 687 



8:8 NCR 687 



92 DHR 1145 


Bee ton 


05/13/93 


8:5 NCR 443 


92 DHR 1192 


Nesnow 


04/02/93 


8:3 NCR 313 


92 DHR 1275 


Gray 


03/15/93 




92 DHR 1320 


Morgan 


05/21/93 




92 DHR 1329 


Chess 


05/10/93 




92 DHR 1375 


Chess 


08/02/93 




92 DHR 1604 


Reilly 


05/10/93 




92 DHR 1612 


Chess 


03/08/93 




92 DHR 1613 


Chess 


03/08/93 




92 DHR 1614 


Chess 


03/09/93 





8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2193 



CONTESTED CASE DECISIONS 



AGENCY 



Wayne Sanders and Brenda Sanders v. Human Resource* 

Bntlhaven, Inc. v. Human Resources &. Valdese Nursing Home, Inc. 

Samuel Benson v. Office of Admin. Hearings for Medicaid 

James W. McCall, Alice V. McCall v. Human Resources 

Vernice Whisnant v. Human Resources 

Nell Brooks v. Child Day Care Section, Cherokee Cty Dept/Social Svcs 

Cabarrus Cty Dept. of Social Svcs. v. Human Resources 

Hannah F. Tonkel v. Human Resources 

Fannie Lewis v. Human Resources 

Human Resources, Div. of Child Development v. Susan Amato 

Katie Kelly v. Human Resources 

Jessie Campbell &. Hazel Campbell v. Human Resources 

A.C., by &. through her agent &. personal rep. Hank Neal v. Human Res. 

Venola Hall, Agape Day Care v. Human Resources 

Warren Cty NC Lucious Hawkins v. Human Resources, C. Robin Britt 

Christopher Durrer, Wilson Memorial Hospital v. Human Resources 

Mary McDuffie v. Human Resources Child Development 

Darryl A. Richardson v. Human Resources 

Home Health Prof., Barbara P. Bradsher, Admin v. Human Resources 

Sandra Gail Wilson v. Child Abuse/Neglect, Div. of Child Development 

Thomas M. Moss v. Human Resources 

Rosa Wall v. Nurse Aide Registry, Charge of Abuse 

Frank S. &. Susie R. Wells v. New Hanover Cty. Dept of Social Svcs. 

Mattie and Johnny Smith v. Lenoir County Department of Social Services 

Gloria C. Haith v. Burlington Child Dev. Center 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92 DHR 1699 


Reilly 


06/07/93 


92 DHR 1785 


Gray 


09/17/93 


93 DHR 0010 


Bee Ion 


03/11/93 


93 DHR 0102 


Morgan 


10/05/93 


93 DHR 0332 


Morgan 


09/23/93 


93 DHR 0343 


Bee ton 


11/29/93 


93 DHR 0373 


Morgan 


07/20/93 


93 DHR 0378 


Nesnow 


09/10/93 


93 DHR 0379 


Gray 


06/28/93 


93 DHR 0418 


Morgan 


08/26/93 


93 DHR 0441 


Chess 


07/26/93 


93 DHR 0521 


Bee ton 


01/13/94 


93 DHR 0529 


Nesnow 


12/06/93 


93 DHR 0535 


Mann 


10/22/93 


93 DHR 0540 


Gray 


12/06/93 


93 DHR 0566 


Chess 


09/17/93 


93 DHR 0651 


Bee ton 


09/10/93 


93 DHR 0679 


Beaton 


09/30/93 


93 DHR 0737 


Chess 


09/23/93 


93 DHR 0782 


Nesnow 


09/09/93 


93 DHR 0864 


Chess 


11/05/93 


93 DHR 0881 


West 


12/15/93 


93 DHR 0922 


Nesnow 


11/08/93 


93 DHR 1176 


Morrison 


12/29/93 


93 DHR 1788 


Nesnow 


01/27/94 



PUBLISHED DECISION 
REGISTER CITATION 



8:7 NCR 632 



8:18 NCR 1832 



8:19 NCR 1926 



INSURANCE 



Carolyn M. Hair v. St Employees Comprehensive Major Medical 
Scotland Memorial Hospital, Mary Home Odom v. Bd. /Trustees// 
St. of N.C. Teachers' & St. Emp. Comp. Major Medical Plan, and 
David G. Devries, as Exec. Admin, of the N.C. Teachers' &. St. Emp. 
Comp. Major Medical Plan 
Phyllis C. Harris v. Teachers* &. St. Emp. Comp. Major Med. Plan 
Jarmaine Knight v. Ms. Shirley H. Williams, Insurance 



92 INS 1464 
92 INS 1791 



93 INS 0197 
93 INS 1056 



Chess 
Reilly 



Nesnow 
West 



03/10/93 
08/19/93 



07/29/93 
12/01/93 



JUSTICE 



Philip B. Cates v. Justice, Attorney General's Office 

Donald Willaid Johnson v. Criminal Justice Ed. & Training Stds. Comm. 

Jennings Michael Bostic v. Sheriffs' Ed. &. Traning Stds. Comm. 

Colin Carlisle Mayers v. Sheriffs' Ed. &. Training Stds. Comm. 

Jennings Michael Bostic v. Sheriffs' Ed. &. Traning Stds. Comm. 

Michael Charles Kershner v. Criminal Justice Ed & Training Stds Comm 

George Wilton Hawkins v. Criminal Justice Ed. & Training Stds. Comm. 

Marilyn Jean Britt v. Criminal Justice Ed. &. Training Stds. Comm. 

Tim McCoy Deck v. Criminal Justice Ed. & Training Stds. Comm. 

Richard Zander Frink v. Criminal Justice Ed. & Traning Stds. Comm. 

Sherri Ferguson Revis v. Sheriffs' Ed. &. Training Stds. Comm. 

Mark Thomas v. Sheriffs' Ed. & Training Standards Commission 

George Wilton Hawkins v. Sheriffs' Ed. &. Training Stds. Comm. 

Noel B. Rice v. Criminal Justice Ed. &. Training Standards Comm. 

Lonnie Allen Fox v. Sheriffs* Ed. & Training Standards Commission 

Alarm Systems Licensing Bd. v. Eric Hoover 

Alarm Systems Licensing Bd. v. Vivian Darlene Gaither 

Rebecca W Stevenson v. Criminal Justice Ed. & Training Stds. Comm. 

Lloyd Harrison Bryant Jr. v. Criminal Justice Ed & Training Stds Comm 

William B. Lipscomb v. Private Protective Services Board 

Private Protective Svcs. Bd. v. Fred D. Rector 

Private Protective Svcs. Bd. v. Alan D. Simpson 

William M. Medlin v. Sheriffs' Ed. & Training Stds. Comm. 

Karl L. Halsey Sr. v. Criminal Justice Ed. &. Training Stds. Comm. 

Charles Freeman v. Sheriffs' Ed. & Training Stds. Comm. 

Shayne K. MacKinnon v. Sheriffs' Ed. & Training Stds. Comm. 

Carl Michael O'Byrne v. Alarm Systems Licensing Board 

Gary D. Cunningham v. Private Protective Services Board 

Private Protective Services Board v. Michael A. McDonald 

Levon Braswell v. Private Protective Services Board 



90 DOJ 0353 


Morgan 


08/30/93 


8:13 NCR 1281 


92 DOJ 0420 


West 


11/05/93 


8:17 NCR 1705 


92 DOJ 0656* 7 


West 


06/22/93 




92 DOJ 0761 


Morrison 


05/10/93 




92 DOJ 0829* 7 


West 


06/22/93 




92 DOJ 0869 


Morgan 


08/11/93 




92 DOJ 1081*' 


Morgan 


07/09/93 




92 DOJ 1088 


Morrison 


03/16/93 




92 DOJ 1367 


Chess 


04/01/93 




92 DOJ 1465 


Nesnow 


05/28/93 




92 DOJ 1756 


Gray 


03/23/93 




93 DOJ 0151 


West 


04/21/93 




93 DOJ 01 56*' 


Morgan 


07/09/93 




93 DOJ 0174 


Morrison 


12/13/93 




93 DOJ 0196 


Morrison 


08/09/93 




93 DOJ 0201 


Bee ton 


07/12/93 




93 DOJ 0202 


Chess 


05/10/93 




93 DOJ 0357 


Morrison 


09/13/93 




93 DOJ 0377 


Reilly 


08/31/93 




93 DOJ 0458 


Morrison 


06/01/93 




93 DOJ 0479 


Mann 


08/19/93 




93 DOJ 0480 


West 


07/21/93 




93 DOJ 0569 


Chess 


10/06/93 




93 DOJ 0625 


Gray 


12/01/93 




93 DOJ 0685 


Nesnow 


12/06/93 




93 DOJ 0686 


Nesnow 


12/16/93 




93 DOJ 0844 


Nesnow 


09/08/93 


8:13 NCR 1300 


93 DOJ 0845 


Reilly 


12/22/93 




93 DOJ 0975 


Gray 


11/29/93 




93 DOJ 1003 


Morrison 


12/29/93 


8:20 NCR 2020 



< 



2194 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Thomas H. Groton v. Sheriffs' Ed. &. Training Slds. Comm. 
Dale Alvin Floyd v. Private Protective Services Board 

LABOR 

Greensboro Golf Center, Inc. v. Labor 

Ronald Dennis Hunt v. Labor 

Jeffrey M. McKinney v. Labor 

Pastor Larry C. Taylor Warsaw Church of God v. Labor 

MORTUARY SCIENCE 

Board of Mortuary Science v. Triangle Funeral Chapel, Inc. 

PUBLIC INSTRUCTION 

Arnold O. Herring v. Public Instruction 

Frances F Davis, Parent of Joseph E. Davis v. Public Instruction 

Donna Marie Snyder v. Public Instruction 

Virginia Willoughby v. Craven County Board of Education 



93 DOJ 1116 
93 DOJ 1472 



92 BMS 1169 



Bee ton 
Morrison 



Reilly 



01/06/94 
12/30/93 



92 DOL 0204 


Nesnow 


04/15/93 


92 DOL 1319 


Morgan 


06/17/93 


92 DOL 1333 


Morrison 


06/21/93 


93 DOL 0961 


West 


11/16/93 



04/29/93 



91 EDC 0858 


Bee ton 


10/20/93 


93 EDC 0628 


Mann 


07/29/93 


93 EDC 0731 


Nesnow 


09/16/93 


93 EDC 1143 


Mann 


12/17/93 



8:4 NCR 396 



8:20 NCR 2022 



STATE PERSONNEL 

Frances K. Pale v. Transportation 

Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Connie B. Lee v. Justice 

Donald Allen Rutsehman v. UNC Greensboro, Office of Human Res. 
Bernie B. Kellly v. Correction 

William H. Peace ITJ v. Employment Security Commission 
Brenda G. Mitchell v. Correction 
Walton M. Pittman v. Correction 

Adolph Alexander Justice Jr. v. Motor Vehicles, Transportation 
Clayton Brewer v. North Carolina State University 
Sherman Daye v. Transportation 
Donnie M. White v. Correction 

Gregory Samuel Parker v. Environment, Health, & Natural Resources 
Renee E. Shepheid v. Winston-Salem State University 
Eva Dockery v. Human Resources 

Lee P. Crosby v. Michael Kelly, William Meyer and EHR 
William Marshall Boyd Jr. v. County Commissioners of Hyde &. 

Certain Board of Health Members 
Gregory Samuel Parker v. Environment, Health, & Natural Resources 
Willie Granville Bailey v. Winston-Salem State University 
Mattie W. Smith v. State Agricultural and Technical University 
Julia Spinks v. Environment, Health, &. Natural Resources 
James B. Price v. Transportation 
I. Cary Nailling v. UNC-CH 
Deborah Barber v. Correction 
Laverne B. Hill v. Transportation 
Timmy D. Wilkins v. Transportation 

Sarah W Britt v. Human Resources, C.A. Dillon School, CPS 
Charles Robinson v. Revenue 

Anna L. Spencer v. Mecklenburg County Area Mental Health 
Herman James Goldstein v. UNC-Chapel Hill et al. 
Ronnie H. Mozingo v. Correction 
Glinda C. Smith v. Wildlife Resources Commission 
Cindy G. Bartlett v. Correction 
William Kenneth Smith Jr. v. Broughton Hospital (Human Resources) 



88 OSP 0340 Morrison 05/03/93 

90OSP1064* 1 Mann 05/04/93 

90 OSP 1065* 1 Mann 05/04/93 

90 OSP 1066* 1 Mann 05/04/93 

90OSP1067* 1 Mann 05/04/93 

90 OSP 1068* 1 Mann 05/04/93 



91 OSP 0011 


Morgan 


10/05/93 


8:15 NCR 1498 


91 OSP 0305 


Chess 


10/19/93 




9 1 OSP 0344 


Morrison 


05/27/93 




91 OSP 0572 


Chess 


10/12/93 




91 OSP 0625 


West 


03/08/93 


8:1 NCR 75 


91 OSP 0805 


Morgan 


10/06/93 




91 OSP 0860 


Chess 


07/19/93 




91 OSP 0941 


West 


04/02/93 


8:3 NCR 306 


91 OSP 0951 


West 


05/07/93 




91 OSP 1236 


Morgan 


04/05/93 




91 OSP 1344^ 


Chess 


05/20/93 




91 OSP 1391 


Morgan 


04/28/93 




92 OSP 0010 


Chess 


05/03/93 




92 OSP 0056 


Gray 


06/07/93 




92 OSP 0090 


Gray 


08/25/93 




92 OSP0188* 5 


Chess 


05/20/93 




92 OSP 0285 


Morrison 


03/10/93 




92 OSP 0298* 12 


Reilly 


09/14/93 




92 OSP 0313 


Becton 


04/12/93 


8:4 NCR 382 


92 OSP 0375 


Gray 


04/13/93 




92 OSP 0394 


Becton 


04/20/93 




92 OSP 0396 


Chess 


03/04/93 




92 OSP 043 1* 1 


West 


03/08/93 




92 OSP 0432* 1 


West 


03/08/93 




92 OSP 0455 


West 


05/26/93 


8:6 NCR 484 


92 OSP 0553 


Morgan 


07/21/93 




92 OSP 0584 


Becton 


08/16/93 




92 OSP 0634 


Morrison 


05/04/93 




92 OSP 0644 


Mann 


10/11/93 




92 OSP 0653 


Morrison 


03/12/93 




92 OSP 0671 


Morgan 


06/08/93 




92 OSP 0684 


Becton 


05/10/93 





8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2195 



CONTESTED CASE DECISIONS 



ACKNCY 



Larry O. Nobles v. Human Resources 

Beatrice Wheless v. Lise M. Miller, University Payroll Off., NC St. Univ. 

Tracey Hall v. N.C. Central U, Off. of Scholarship & Student Aid 

Sondra Williams v. Winston-Salem State University 

Willie Thomas Hope v. Transportation 

David Scales v. Correction 

Suzanne Ransley Hill v. Environment, Health, & Nat. Res. 

Herman James Goldstein v. UNC-Chapel Hill et al. 

Charles M. Blaekwelder v. Correction 

Beatrice Wheless v. Lise M. Miller, University Payroll Off., NC St. Univ. 

John B. Sauls v. Wake County Health Department 

Patti G. Newsome v. Transportation 

Nancy McAllister v. Camden County Department of Social Services 

Gilbert Jaeger v. Wake County Alcoholism Treatment Center 

Rex Inman v. Stokes County Department of Social Services 

Joseph Henry Bishop v. Environment, Health, & Natural Res. 

Glenn D. Fuqua v. Rockingham County Board of Social Services 

Dorothy D. Johnson v. Correction 

Willie L. Hudson v. Correction 

Brenda K. Campbell v. Employment Security Commission 

Christie L. Guthrie v. Environment, Health, & Natural Resources 

Sharon Reavis v. Crime Control &. Public Safety 

Alphonso Walker v. Human Resources 

James B. Price v. Transportation 

Jerry L. Jones v. N.C.S.U. Physical Plant 

Mattie W. Smith v. State Agricultural and Technical University 

Gina Renee Cox v. UNC Chapel Hill 

Roland W. Holden v. University of North Carolina at Chapel Hill 

Betty Bradsher v. UNC-CH 

Anthony M. Little v. Human Resources, John Umstead Hospital 

Jannie C. Sykes v. Employment Security Commission 

Jamal Al Bakkat-Morris v. Glenn Sexton (DSS) 

Rebecca Beauchesne v. University of North Carolina at Chapel Hill 

Brenda Kay Barnes v. Human Resources 

Larry G. Riddle v. Correction, Division of Prisons 

Stevie E. Dunn v. Polk Youth Center 

Buford D. Vieregge Jr. v. N.C. State University, University Dining 

Dorothy Ann Harris v. Correction 

Brenda B. Miles v. University of North Carolina Chapel Hill 

Deborah J. Whitfield v. Caswell Center 

Karen Canter v. Appalachian State University 

Terry Steve Brown v. Iredell County Health Department 

Barbara A. Johnson v. Human Resources 

Carrie P. Smith v. County of Stanly 

George W Allen v. Human Resources, Correction, Agri & EHNR 

William G. Fisher v. St Bd of Ed, Albermarle City Schools & Bd of Ed 

Grace Jean Washington v. Caswell Center 

Ralph Snipes v. Transportation and Correction 

Clifton E. Simmons v. Correction 

Willie L. James v. Caswell Center 

Irving S. Rodgers v. C.A. Dillon, Division of Youth Services 

Richard E. Howell v. Correction, Wayne Correctional Center 

Brian Dale Barnhardt v. State Highway Patrol 

F.R. "Don" Bowen v. Human Resources 

Michael L. Pegram v. Correction 

Jerry D. Doss Sr. v. Correction 

Odessa Parker v. Durham County Dept. of Social Services 

Debbie Renee Robinson v. Correction 

Sharon Brandon v. Dorothea Dix Hospital 

Shaw Boyd v. Correction 

Ida Gaynell Williams v. Wilson County Dept. of Social Services 

Linda R. Wharton v. N.C. A & T University 

Michael L. Pegram v. Correction 

Ralph W. Burcham v. Transportation 

Claudius S. Wilson v. Human Resources 

Edward D. Day Jr., John D. Warlick, Gary W Beecham v. Correction 

Edward D. Day Jr., John D. Warlick, Gary W Beecham v. Correction 

Carrie Lee Gardner v. Human Resources 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


92 OSP 0732 


Mann 


04/23/93 




92 OSP 0744* 1 " 


Morgan 


07/16/93 




92 OSP 0815 


Morgan 


09/16/93 




92 OSP 0847 


Morrison 


08/06/93 




92 OSP 0947 


Morgan 


03/23/93 




92 OSP 0989 


Chess 


06/24/93 




92 OSP 0992 


Reilly 


03/18/93 


8:2 NCR 224 


92 OSP 1047 


Morrison 


05/04/93 




92 OSP 1082 


Morrison 


10/15/93 


8:15 NCR 1500 


92 OSP 1 124* 10 


Morgan 


07/16/93 




92 OSP 1 142 


Reilly 


03/08/93 


8:1 NCR 88 


92 OSP 1180 


Beeton 


09/22/93 


8:14 NCR 1346 


92 OSP 1185 


Chess 


09/07/93 




92 OSP 1204 


Reilly 


05/10/93 




92 OSP 1230 


Beeton 


01/18/94 




92 OSP 1243 


Reilly 


03/05/93 




92 OSP 1318 


Morrison 


08/03/93 




92 OSP 1395 


Nesnow 


10/29/93 




92 OSP 1468 


Beeton 


05/26/93 




92 OSP 1505 


Morrison 


03/17/93 




92 OSP 1555 


Beeton 


05/31/93 




92 OSP 1606 


Morrison 


08/19/93 


8:12 NCR 1163 


92 OSP 1615 


Chess 


12/16/93 




92 OSP 1657 


Mann 


03/19/93 




92 OSP 1661 


Chess 


07/06/93 




92 OSP 1691* 13 


Reilly 


09/14/93 




92 OSP 1692 


Beeton 


10/18/93 




92 OSP 1715 


Beeton 


08/30/93 


8:13 NCR 1292 


92 OSP 1733 


Beeton 


03/30/93 




92 OSP 1734 


Beeton 


09/01/93 




92 OSP 1738 


Gray 


10/25/93 




92 OSP 1741 


Beeton 


03/24/93 




92 OSP 1767 


Beeton 


10/01/93 




92 OSP 1768 


Morrison 


03/17/93 




92 OSP 1774 


Gray 


04/26/93 




92 OSP 1789 


Beeton 


04/19/93 




92 OSP 1796 


Morrison 


05/27/93 




93 OSP 0013 


Morrison 


09/15/93 




93 OSP 0033 


Morrison 


09/10/93 




93 OSP 0064 


West 


09/20/93 




93 OSP 0079 


Reilly 


06/15/93 




93 OSP 0101 


Morgan 


08/06/93 




93 OSP 0103 


Morrison 


03/17/93 




93 OSP 0109 


Beeton 


04/01/93 




93 OSP 01 11 


Reilly 


04/16/93 




93 OSP 0134 


Beeton 


04/20/93 




93 OSP 0153 


Morgan 


06/03/93 




93 OSP 0157 


Mann 


12/13/93 




93 OSP 0159 


Morrison 


04/21/93 




93 OSP 0171 


Morgan 


05/27/93 




93 OSP 0177 


West 


04/21/93 




93 OSP 0245 


Gray 


08/25/93 




93 OSP 0251 


Reilly 


07/27/93 




93 OSP 0253 


Morgan 


08/06/93 




93 OSP 0275** 


Reilly 


06/28/93 




93 OSP 0287 


Gray 


05/17/93 




93 OSP 0366 


Nesnow 


12/15/93 




93 OSP 0383 


Nesnow 


06/07/93 




93 OSP 0419 


Gray 


12/06/93 




93 OSP 0438 


Morgan 


11/12/93 


8:18 NCR 1838 


93 OSP 0440 


Gray 


12/01/93 




93 OSP 0456 


Chess 


09/22/93 




93 OSP 0472** 


Reilly 


06/28/93 




93 OSP 0493 


Chess 


10/15/93 


8:16 NCR 1558 


93 OSP 0498 


Gray 


12/15/93 




93 OSP 0522*" 


Morrison 


12/14/93 


8:19 NCR 1922 


93 OSP 0523*° 


Morrison 


12/14/93 


8:19 NCR 1922 


93 OSP 0537 


Reilly 


12/21/93 





( 



2196 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 ABC 0861 



NORTH CAROLINA ALCOHOLIC BEVERAGE 
CONTROL COMMISSION, 
Petitioner, 



RECOMMENDED DECISION 



UTILITIES CONTROL, INC., t/a ACC TAVERN, 
Respondent. 



This contested case was heard in the Federal Courthouse, Raleigh, Wake County, North Carolina, 
before Julian Mann, III, Chief Administrative Law Judge, on December 8th and 9th, 1993. The record closed 
with the filing of Proposed Findings of Fact and Conclusions of Law on January 10, 1994. 



APPEARANCES 



For Petitioner: 



For Respondent: 



Glenn B. Lassiter, Jr. 

Agency Legal Specialist 

North Carolina Alcoholic Beverage Control Commission 

P. O. Box 26687 

Raleigh, North Carolina 27611-6687 

Attorney for Petitioner 

Alexis C. Pearce 

Attorney at Law 

16 W. Martin Street 

Suite 207 

P. O. Box 2536 

Raleigh, North Carolina 27602 

Attorney for Respondent 



WITNESSES 



For Petitioner: 



For Respondent: 



Agent Herbert I. Battle 
Stephen Brian Stowe 
Detective David Murphy 
Stephen Paquette 
Agent Kendell Pike 
Agent Jeffrey L. Lassiter 
Erin K. Brandon 
Amy Yvette Atkinson 
Stephen P. Ragan, Jr. 
Mary K. Jackson 
Bob D. Droke 
Donna D. Mitchell 
Joanna Sawyer 



Kenneth H. Brendell 

Brian M. McGuire 

John W. Hopkins (Respondent) 



2198 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



CONTESTED CASE DECISIONS 



a<;kncv 



Alvin Lamonte Breedon v. OPC Mental Health 

Edward D. Day Jr., John D. Warlick, Gary W. Beeeham v. Correction 

Hubert L. Holmes v. Transportation 

Vernell Ellis Turner v. NC A &. T Ftolice Dept, NC Agricultural Tech U 

Barry W. Corbett v. Environment, Health, &. Natural Resources 

Everette E. Newton v. University of NC at Chapel Hill 

Constance Smith-Rogers v. Human Resources 

Timothy E. Blevins v. UNC A/K/A Western Carolina University 

Xantippe Blackwell v. Human Resources, Murdoch Center 

Wayne Bradley Johnson v. State Computing Center 

Harold Kovolenko v. Lynn C. Phillips, Director of Prisons 

Daniel Thomas Wheeler, Kye Lee Wheeler v. Caldwell County 

Department of Social Services 
Terry Johnson v. Correction 
David Henry v. Correction 
Kathleen E. Conran v. New Bern Mice Dept., City of New Bern; and 

City of New Bern Police Civil Service Board 
Berton Hamm Jr. v. Wake County Child &l Family Services 
John R. Woods Sr. v. Wake County Child &. Family Services 
Coleman F. Tyranee Jr. v. Wake County Child &. Family Services 
John Augusta ftage v. Wake County Child &. Family Services 
Thomas James v. Wake County Child &. Family Services 
James E. Hargrove v. Wake County Child &. Family Services 
Ricky Harrell v. Wake County Child &. Family Services 
Bruce Creecy v. Wake County Child & Family Services 
Dana Phillips v. Administrative Office of the Courts 
William G. Beam v. Transporfetion 

Mary U. Rote v. Carteret Community Action, Inc. &. Carteret Cty. 
Terry P. Chappell v. Correction 

Marie C. Ricucci v. Forsyth County Public Health Dept. 
Willie David Moore v. Correction (Piedmont Correctional Inst.) 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


93 OSP 0551 


Gray 


11/23/93 




93 OSP 0567*" 


Morrison 


12/14/93 


8:19 NCR 1922 


93 OSP 0572 


Re.Uy 


08/17/93 




93 OSP 0577 


Bee ton 


11/03/93 




93 OSP 0584 


Reilly 


01/13/94 


8:21 NCR 2110 


93 OSP 0589 


Reilly 


12/07/93 




93 OSP 0593 


Reilly 


12/21/93 




93 OSP 0604 


Morgan 


09/29/93 




93 OSP 0632 


Reilly 


09/01/93 




93 OSP 0694 


Chess 


10/11/93 




93 OSP 0697 


Nesnow 


09/08/93 




93 OSP 0752 


Nesnow 


09/16/93 




93 OSP 0757 


Gray 


10/06/93 




93 OSP 0789 


Gray 


11/29/93 




93 OSP 0797 


Morrison 


09/21/93 




93 OSP 0809 


Bee Ion 


10/27/93 




93 OSP 0810 


Bee ton 


11/02/93 




93 OSP 0811 


Bee ton 


11/02/93 




93 OSP 0812 


Bee ton 


11/02/93 




93 OSP 0813 


Bee ton 


11/02/93 




93 OSP 0814 


Bee ton 


11/02/93 




93 OSP 0815 


Becton 


11/02/93 




93 OSP 0816 


Bee ton 


11/02/93 




93 OSP 0822 


West 


09/09/93 




93 OSP 0828 


West 


12/29/93 




93 OSP 0831 


Morrison 


12/29/93 




93 OSP 0834 


Nesnow 


10/11/93 




93 OSP 0882 


West 


01/27/94 




93 OSP 1043 


Nesnow 


12/03/93 





( 



STATE TREASURER 



Juanita M. Braxton v. Bd. of Trustees /Teachers' & St Emp Ret Sys 
James Hines on behalf of Luther Hines (Deceased) v. Board of 
Trustees Teachers' and State Empployees' Retirement System 
Herman D. Brooks v. Bd of Trustees/Teachers* & St Emp Ret Sys 
Henrietta Sandlin v. Teachers' & State Emp Comp Major Medical Plan 
Frances Billingsley v. Bd /Trustees /Teachers* & St. Emp. Ret. Sys. 
Dennis Willoughby v. Bd. /Trustees/Teachers' Sl St. Emp. Ret. Sys. 
Mary Alyce Carmichael v. Bd /Trustees /Teachers' & St Emp Ret Sys 
Shirley M. Smith v. Bd. /Trustees/Teachers* & St. Emp. Ret. Sys. 
W. Rex Perry v. Bd/Trustees/Teachers' & St Emp Ret Sys 
Rory Dale Swiggett v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. Sys. 
Catherine D. Whitley v. Bd. Trustees /Teachers &. St. Emp. Ret. Sys. 



91 DST 0017 


West 


09/07/93 




91 DST 0130 


Morgan 


01/21/94 




91 DST 0566 


Gray 


04/13/93 




92 DST 0305 


Morgan 


04/12/93 




92 DST 0996 


West 


09/20/93 




92 DST 1439 


West 


09/20/93 


8:14 NCR 1356 


92 DST 1506 


Chess 


04/08/93 




92 DST 1776 


Reilly 


11/18/93 


8:18 NCR 1829 


93 DST 0133 


West 


08/12/93 


8:11 NCR 992 


93 DST 0198 


West 


09/28/93 


8:14 NCR 1360 


93 DST 0727 


Reilly 


11/18/93 





TRANSPORTATION 



Yates Construction Co. , Ine. v. Transportation 

American S&.P Auto v. Commissioner, Div. of Motor Vehicles 

William G Oglesby v. Division of Motor Vehicles 



92 DOT 1800 

93 DOT 1070 
93 DOT 1375 



Morgan 

Morrison 

Morrison 



03/25/93 
12/02/93 
12/29/93 



UNIVERSITY OF NORTH CAROLINA HOSPITALS 



Constance V. Graham v. UNC Hospital 
Jacqueline Florence v. UNC Hospitals 



93 UNC 0269 
93 UNC 0355 



Morgan 
Bee ton 



07/20/93 
06/16/93 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2197 



CONTESTED CASE DECISIONS 



EXHIBITS 
For Petitioner: For Respondent: 

Petitioner's Exhibit #1 Respondent's Exhibit #1, #2, #3, #4 and #5 

ISSUES 

1 . Did Respondent allow persons to display pubic hair on the licensed premises on or about June 
27, 1993, at 12:30 a.m. in violation of ABC Commission Rule 4 NCAC 2S .0216(a)(3). 

2. Did Respondent employee allow persons to display the genitals on the licensed premises on 
or about June 27, 1993, at 1 :40 a.m. in violation of G.S. 1 8 B- 1005(a)(4) and ABC Commission Rule 4 NCAC 
2S .0216(a)(3). 

3. Was Respondent's business location no longer considered to be suitable to hold ABC permits 
on or about July 2, 1993, at 1:00 a.m. in violation of G.S. 18B-901(c)(8). 

4. Did Respondent fail to properly supervise the licensed premises on or about June 19, 1993, 
at 1:00 a.m., June 26, 1993, at 11:30 p.m. and July 2, 1993 (as amended) at 11:00 p.m. in violation of G.S. 
18B- 1005(a)(1) and ABC Commission Rule 4 NCAC 2S .0233. 

5. Did Respondent and his employee fail to determine the age of any person consuming or 
possessing alcoholic beverages on the licensed premises on or about June 18, 1993, at 1 :50 a.m. (two counts), 
July 2, 1993, at 10:30 p.m. (three counts), and July 2, 1993, at 11:30 p.m. (two counts) in violation of ABC 
Commission Rule 4 NCAC 2S .0233(b). 

6. Did Respondent's employee sell malt beverages to Bob Droke, a person less than 21 years 
of age, on the licensed premises on or about July 2, 1993, at 10:30 p.m., 10:50 p.m., 1 1:00 p.m. and 11:15 
p.m. (four counts) in violation of G.S. 18B-302(a)(l). 

7. Did Respondent's employee sell malt beverages to Amy Yvette Atkinson, a person less than 
21 years of age, on the licensed premises on or about July 2, 1993, at 10:30 p.m. in violation of G.S. 18B- 
302(a)(1). 

8. Did Respondent's employee sell malt beverages to Steven Brian Stowe, a person less than 21 
years of age, on the licensed premises on or about June 26, 1993, at 12:30 a.m., 1:03 a.m., and 1:15 a.m., 
June 27, 1993, at 12:02 a.m. and 1:30 a.m. (five counts) in violation of G.S. 18B-302(a)(l). 

9. Did Respondent's employee sell unfortified wine to Steven Brian Stowe on the licensed 
premises on or about June 27, 1993, at 12:50 a.m. in violation of G.S. 18B-302(a)(l). 

10. Did Respondent consume alcoholic beverages on the licensed premises on or about July 2, 
1993, at 11:30 p.m. in violation of ABC Commission Rule 4 NCAC 2S .0212(a). 

11. Did Respondent's employee knowingly allow a person less than 21 years of age to possess 
and consume malt beverages on the licensed premises on or about July 2, 1993, at 10:30 p.m. in violation 
of G.S. 18B-302(b)(l)and G.S. 18B-1005(a)(l). 

At the close of Petitioner's evidence, Petitioner, by and through its legal counsel, voluntarily 
dismissed all charges as alleged in Issue #1; that part of Issue #4 alleging that the Respondent failed to 
properly supervise the licensed premises on or about June 19, 1993, at 1:00 a.m.; and that part of Issue #5 
which alleged that the Respondent and his employees failed to determine the age of any person consuming or 
possessing alcoholic beverages on the licensed premises on or about June 18, 1993, at 1:50 a.m. (two counts). 



8:22 NORTH CAROLINA REGISTER February 15, 1994 2199 



CONTESTED CASE DECISIONS 



The parties agreed upon the following Stipulations which were read into the record and were contained 
in the Order of Continuance, dated November 9, 1993: 

STIPULATIONS 

"1. Bob Drake is a person who was under 21 years of age on July 2, 1993 and is presumed to 

have been on Respondent's premises on that date. 

2. Mary Jackson is a person who was under 21 years of age on July 2, 1993 and is presumed 
to have been on Respondent's premises on that date. 

3. Stephen Ragan, Jr. is a person who was under 21 years of age on July 2, 1993 and is 
presumed to have been on Respondent's premises on that date. 

4. Amy Atkinson is a person who was under 21 years of age on July 2, 1993 and is presumed 
to have been on Respondent's premises on that date. 

5. Danny Allen is a person who was under 21 years of age on July 2, 1993 and is presumed to 
have been on Respondent's premises on that date. 

6. Curtis Baggett is a person who was under 21 years of age on July 2, 1993 and is presumed 
to have been on Respondent's premises on that date. 

7. Erin Brandon is a person who was under 21 years of age on July 2, 1993 and is presumed 
to have been on Respondent's premises on that date. 

8. Stephen Brian Stowe is a person who was under 21 years of age on June 26-27, 1993 and is 
presumed to have been on Respondent's premises on that date." 

Based upon the foregoing Stipulations, the pleadings in the contested case file and by the greater 
weight of the admissible evidence, the undersigned makes the following: 

FINDINGS OF FACT 

1 . The Office of Administrative Hearings has jurisdiction over this contested case pursuant to 
Chapters 18B and 150B of the North Carolina General Statutes. 

2. Petitioner issued to Respondent on premises malt beverage permit, 29958A and on premises 
unfortified wine permit 29958C. 

3. Respondent corporation, trading as the "ACC Tavern", is the holder of these ABC permits. 

4. John Wilson Hopkins is a resident of Wake County. North Carolina, and is the President, sole 
owner and operator of Utilities Control, Inc., trading as the "ACC Tavern." 

5. The ACC Tavern is located at 2502 1/2 Hillsborough Street, Raleigh, Wake County, North 
Carolina and is directly across Hillsborough Street from the campus of North Carolina State University. 

6. The Petitioner has previously found Respondent in violation of the ABC laws of the State of 
North Carolina and the implementing regulations as follows: 

Date of Date of 

Offense Offense Charged Action Sanction Imposed 

4/4/92 Sell malt beverage to a person under 10/1/92 Official Warning 



2200 8:22 NORTH CAROLINA REGISTER February 15, 1994 



CONTESTED CASE DECISIONS 



age 21 

4/28/91 Sell malt beverage to a person under 3/13/92 

age 21 

8/23/90 Sell malt beverage to a person under 7/12/91 

age 21 

1 1/19/88 Open to general public (2 counts) 5/19/89 



12/17/88 Open to general public (2 counts) 5/19/89 



12/12/88 



10/9/87 



Open to general public (2 counts) 
Sell malt beverage to underage person 
(2 counts) 

Sell malt beverage to underage person 



Official Warning 



15 days active suspension 



$500.00 fine and 7 days 
active suspension 

$500.00 fine and 7 days 
active suspension 

$1,000.00 fine and 15 
days active suspension 



$2,000.00 fine 



3/5/87 



7/1/85 



Store spirituous liquor on premises 
without a mixed beverage tax stamp 
(Concurrent criminal charge) 

Sell malt beverage to a person under 
age 21 



Official warning 



$750.00 fine and 3 days 
active suspension 



7. Mr. Hopkins hires and is directly involved in the training of his employees. Mr. Hopkins 

prepared an employee manual and all employees are required to be familiar with the ABC laws (Interim Note 
7/23/86) and the policies of the Respondent. 



8. 



At all times relevant to this hearing, Mr. Hopkins was present on Respondent's premises. 



9. Mr. Brian McGuire, Respondent's employee, is the general manager of the Tavern during 
the evenings and is also the disc jockey. At all times relevant to this hearing, Mr. McGuire was present on 
Respondent's premises. 

10. Mr. Kenneth Brendell, Respondent's employee, is in charge of floor security and admission 
to the premises. At all times relevant to this hearing, Mr. Brendell was present on Respondent's premises. 

11. Under Respondent's "Door Procedures" Respondent's employees are warned of the 
consequences of serving alcohol to under age drinkers. "18. Remember, if anyone is caught by an ALE agent 
consuming we are out of business and you are liable for any fines the club incurs." (Respondent's Exhibit 



13. Steven Brian Stowe is a student at Wake Tech majoring in criminal justice. He was employed 
in an undercover capacity by the Raleigh Police Department and paid compensation of $50.00. On June 26 
and 27, 1993 Mr. Stowe was 20 years of age. His undercover assignment was to enter the ACC Tavern and 
attempt to make purchases of alcoholic beverages. 

14. On June 25, 1993, prior to midnight, Mr. Stowe entered the ACC Tavern. He had on his 
person his valid North Carolina driver's license which indicated that he was 20 years of age at the time. A 
stamp was placed on the underside of his wrist by an employee of the Respondent. The wrist when stamped 
in this fashion indicated that Mr. Stowe was less than 21 years of age and was not permitted to purchase 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2201 



CONTESTED CASE DECISIONS 



alcoholic beverages. 

15. At approximately 12:30 a.m. on June 26, 1993, Mr. Stowe approached the bar and ordered 
one bottle of Budweiser Beer. Ms. Joanna Sawyer, an employee of the Respondent, sold the malt beverage 
to Mr. Stowe. Mr. Stowe proceeded to the restroom on the premises and met there with Detective Murphy 
of the Raleigh Police Department. The malt beverage was turned over to Detective Murphy who determined 
that it was an alcoholic malt beverage. Detective Murphy disposed of the malt beverage. Mr. Stowe made 
a second purchase of an alcoholic malt beverage at 1:03 a.m. Mr. Stowe purchased a Budweiser beer from 
Joanna Sawyer, the Respondent's employee. He received change and proceeded to the restroom where 
Detective Murphy identified the malt beverage and disposed of the same. At 1:15 a.m. on June 26, 1993. 
Mr. Stowe purchased an alcoholic malt beverage, a Zima Beer, from Donna Mitchell, an employee of 
Respondent. Mr. Stowe proceeded to the restroom where Detective Murphy identified the malt beverage and 
disposed of the malt beverage. 

16. On the evening and early morning of June 26 and 27, 1993, Mr. Hopkins was present and 
seated at the bar. 

17. On June 27, 1993, Mr. Stowe again made purchases of malt beverages on the Respondent's 
premises. At 12:02 a.m. Joanna Sawyer sold to Mr. Stowe a malt beverage, Budweiser beer. Mr. Stowe 
proceeded to the restroom and Detective Murphy identified the alcoholic beverage and disposed of the same. 
At 12:50 a.m. Mr. Stowe purchased a wine based cocktail known as "Sex on the Beach" from Donna 
Mitchell, Respondent's employee. He proceeded to the restroom on the premises and delivered it to Detective 
Murphy. At 1:30 a.m. on June 27, 1993, Mr. Stowe purchased from Joanna Sawyer, Respondent's employee, 
another alcoholic beverage. Mr. Stowe proceeded to the restroom and Detective Murphy identified the 
alcoholic beverage and disposed of the same. 

18. On June 26 and 27, 1993. Mr. Stowe, in his undercover capacity, made six consecutive 
purchases of alcoholic beverages at a time when he was less than 21 years of age. At all times Mr. Stowe's 
hands were stamped in a manner indicating that he was underage to purchase malt beverages, and his hands 
were in plain view, not concealed. 

19. At no time on June 26 or 27, 1993 did any employee of the Respondent who sold alcoholic 
beverages to Mr. Stowe attempt to determine or verity his age. 

20. On June 26 and 27, 1993, Mr. Hopkins occasionally consumed alcoholic malt beverages while 
on the premises. He believed that his activity encouraged others to purchase malt beverages. 

21 . On July 2. 1993 Bob D. Droke entered the Respondent's premises. He had in his possession 
a false identification (I.D.). The photograph on the military I.D. did not resemble Mr. Droke. The I.D did 
represent that Mr. Droke was over the age of 21 . On July 2, 1993, Mr. Droke was 20 years old. Mr. Droke 
was admitted to Respondent's premises as being over 21 years of age and stamped accordingly. 

22. There were approximately 25 patrons on the premises on July 2, 1993, during the times in 
question. 

23. At 10:30 p.m., July 2, 1993, Mr. Droke purchased a malt beverage, a Rolling Rock Beer, 
from Donna Mitchell. Respondent's employee. At 10:50 p.m., Mr. Droke purchased a second malt beverage, 
a Corona beer, from Joanna Sawyer, Respondent's employee. At 11:00 p.m., Mr. Droke purchased a third 
malt beverage, a Corona beer, from Donna Mitchell. Respondent's employee. At 11:15 p.m., Mr. Droke 
purchased a fourth malt beverage, a Corona beer, from Respondent's employee. 

24. Mr. Hopkins was seated in the bar area during the occasions when Mr. Droke purchased the 
malt beverages. Mr. Hopkins was handed a clipboard with business papers on it by the bartender. He 
reviewed the papers and handed them back to the bartender. 



2202 8:22 NORTH CAROLINA REGISTER February 15, 1994 



CONTESTED CASE DECISIONS 



25. Mr. Drake was charged with purchasing alcoholic beverages under the age of 21 and having 
a fictitious I.D. card in his possession. Mr. Droke pled guilty to these criminal charges. 

26. At approximately 11:00 p.m. on July 2, 1993, Stephen Ragan had in his possession a malt 
beverage and was consuming therefrom. He had a very youthful appearance and was 18 years old. Mr. 
Ragan was criminally charged with possession of a malt beverage, being less than 21 years old. He was 
placed in a deferred prosecution program. 

27. On July 2, 1993, Erin Brandon was on the Respondent's premises. On July 2, 1993, Ms. 
Brandon was 18 years old. She had in her possession on this occasion an alcoholic beverage in a cup which 
she received from a companion and was drinking from the alcoholic beverage. Upon entering the club on this 
date, Ms. Brandon was stamped on the underside of her wrist indicating that she was less than the legal 
drinking age. 

28. During the evening of July 2, 1993, Amy Yvette Atkinson purchased from the Respondent's 
employee, two malt beverages, a Corona Beer and a Zima Beer. After purchasing these malt beverages, Ms. 
Atkinson consumed both of those on the premises. Ms. Atkinson, on July 2, 1993, was 17 years old. 

29. Ms. Atkinson gained entrance to the Respondent's establishment by way of a membership card 
issued by the Respondent which indicated that she was over the age of 21 years. Ms. Atkinson was permitted, 
on a prior occasion, to apply and fill out her own identification card. No valid identification was requested 
or provided by Ms. Atkinson before completing her own identification card. 

30. On July 2, 1993, after presenting the identification card issued by Respondent, Ms. Atkinson 
was stamped on the top of her wrist, which indicated that she was above the age of 21 years old. 

31. On the evening of July 2, 1993, Ms. Atkinson was engaged in a conversation with Mr. 
Hopkins at the bar at a time when she purchased and consumed a malt beverage. It was placed on the bar 
in front of her. She was approximately one to two feet away from Mr. Hopkins. Mr. Hopkins observed Ms. 
Atkinson purchase and consume the malt beverage. 

32. On July 2, 1993, Mary Jackson, age 20, consumed a portion of a malt beverage, a Bud Dry, 
on Respondent's premises. On this occasion, Ms. Jackson had gained entrance to the Respondent's 
establishment and had not produced any identification. She represented to Respondent's employee at the door 
that she was over the age of 21 . Her wrist was stamped on top which indicated that she was over the age of 
21. The Bud Dry alcoholic beverage was purchased for her by a companion who was over the age of 21 
years. On prior occasions, Ms. Jackson had consumed alcoholic beverages on Respondent's premises. 

33. On June 26, 27 and July 2, 1993, Mr. Hopkins had in his possession a clipboard containing 
Respondent's business papers. He also had in his possession in front of him on the bar a walkie-talkie radio 
device for the purpose of transmitting and receiving information from Respondent's employee at the door and 
Respondent's employee acting as a disc jockey. The floor bouncers, Respondent's employees who patrol the 
premises, also have a device wherein they can listen to transmissions from the walkie-talkies. 

34. On the evening of June 26, 1993, Mr. Hopkins had performed repairs to the ice machine on 
the premises. During the same evening, from time to time, Mr. Hopkins monitored the machine to determine 
if it was working properly. 

35. Stephen Paquette was present on Respondent's premises on the evening of June 26, 1993 and 
the morning of June 27, 1993. On the dates in question, Mr. Paquette was 20 years old. Mr. Paquette was 
admitted to the premises and was stamped on the bottom of his hand indicating that he was less than 21 years 
old. Mr. Paquette purchased two malt beverages from an employee of Respondent and consumed these malt 
beverages on the premises. 

36. Normally on Friday and Saturday evening approximately one third of all patrons are below 



8:22 NORTH CAROLINA REGISTER February 15, 1994 2203 



CONTESTED CASE DECISIONS 



age 2 1 . 

37. Mr. Paquette had previously visited the Respondent's premises. He is a soldier at Fort Bragg, 
North Carolina, and is attached to the military police. He has previously purchased malt beverages in the 
Respondent's establishment at a time when he was less than 21 years of age. 

38. On the early morning of June 27, 1993, Mr. Paquette participated in a contest at Respondent's 
establishment. Mr. Hopkins was present on the premises and seated at the bar. There were approximately 
125 patrons on the premises on this occasion. 

39. The contest involved removal of articles of clothing by both male and female contestants 
although the removal of clothing is discretionary with the contestants. The contestants were drawn from the 
patrons present on the premises who indicated a willingness to participate. No fixed age restrictions applied 
to the contestant participation or to the patrons admitted to the establishment. Instructions are given to the 
contestants verbally by Mr. McGuire. Contestants are instructed that they are not to expose themselves. 

40. Mr. Paquette was one of four men who participated in the preliminary round. There were 
five females who participated as well. The contestants were required to dance while music was played. Male 
contestants stripped to their undershorts and female contestants to their undergarments. While Mr. Paquette 
participated in the preliminary round of the contest, an unidentified female who was not a contestant or 
participant, pulled down Mr. Paquette's shorts, exposing his genitals. 

41. Both Mr. Brendell and Mr. McGuire. employees of Respondent, observed this conduct. Mr. 
McGuire communicated this activity to Mr. Hopkins by saying: "I alerted John who was standing there 
watching me. I said, did you see that girl?" Mr. Hopkins monitored the contest with Mr. McGuire from the 
D.J. booth. Mr. Hopkins denies seeing the incident. 

42. There were no obstructions between Mr. Paquette and the patrons who were present on the 
premises. Mr. Paquette was dancing on a slender platform approximately three feet above the floor, which 
is referred to as a "wall." The contest is known as the "Wall Dance" and is sanctioned and promoted by 
Respondent for the entertainment of the patrons. 

43. During the final round of the contest, Mr. Paquette exposed his genitals on two separate 
occasions. Each time he exposed himself, there was a general elevation in the applause and noise that was 
made by the patrons observing the contest. There was sufficient lighting in the establishment directed at the 
contestants to illuminate the contestants so that they could be clearly seen. During the final round of the 
contest, Mr. Paquette pulled his shorts to the side voluntarily and no patron or other person assisted him. 

44. Mr. Paquette was declared the winner among the male contestants. Mr. Paquette approached 
Mr. Hopkins after the contest and Mr. Hopkins provided Mr. Paquette with the cash prize of $25.00. 

Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following: 

CONCLUSION S OF LAW 

1 . The Office of Administrative Hearings has personal and subject matter jurisdiction over this 
contested case pursuant to Chapters 18B and 150B of the North Carolina General Statutes. 

2. The Petitioner has the authority to revoke or suspend the permits of a permittee, fine a 
permittee, or both for violations of Chapter 18B of the North Carolina General Statutes or any regulation of 
the Commission by G.S. 18B-104 and G.S. 18B-203(12). 

3. G.S. 18B-302(a)(l) states: "It shall be unlawful for any person to: (1) Sell or give malt 
beverages or unfortified wine to anyone less than 21 years old;" 



2204 8:22 NORTH CAROLINA REGISTER February 15, 1994 



CONTESTED CASE DECISIONS 



4. G.S. 18B-302(b)(l) states: "It shall be unlawful for: (1) a person less than 21 years old to 
purchase, to attempt to purchase or to possess malt beverages or unfortified wine;" 

5. G.S. 18B- 1005(a)(4) prohibits: "Any conduct or entertainment by any person whose private 
parts are exposed..." 

6. 4 NCAC 2S .0216(a)(3) prohibits any person from displaying their genitals on the permittee's 
premises. The regulation is quoted in part as follows: "No permittee or his employee shall allow any person 
to. . .display. . .genitals. " 

7. G.S. 18B-901(c) establishes the factors that Petitioner may use to determine the suitability 
of a location for the sale of alcoholic beverages. 

8. G.S. 18B-1005(a)(l) prohibits the permittee or his employee from knowingly allowing any 
activity which is otherwise prohibited by Chapter 18B of the North Carolina General Statutes. 

9. 4 NCAC 2S .0233 prohibits the consumption of alcohol by underage persons on the premises 
and is quoted in part as follows: "(a) No permittee or his employees shall knowingly allow a person under 
the age of 21 to possess or consume any alcoholic beverages on the licensed premises, (b) It shall be the duty 
of the permittee and his employees to determine the age of any person consuming or possessing alcoholic 
beverages on the licensed premises." 

10. 4 NCAC 2S .0212 prohibits the permittee from consuming alcoholic beverages on the licensed 
premises and further restricts the permittee from performing services of any nature while or after consuming 
alcoholic beverages. 

11. 4 NCAC 2S .0201(a) requires that the permittee comply with all ABC statutes and 
Commission rules as an ongoing requirement for the privilege of maintaining ABC permits. 

12. 4 NCAC 2S .0201(b) is quoted in part as follows: "The permittee shall ensure that the 
Commission's rules governing the sale, possession,... and consumption of alcoholic beverages on the licensed 
premises are adhered to by employees and patrons . Further, a permittee shall ensure that all Commission 
rules on the operation of the business with ABC permits are adhered to by employees and patrons . Failure 
to comply with the statutes or the rules of the Commission by permittees, employees and patrons may result 
in the suspension or revocation of all ABC permits held by a permittee. " (emphasis added) 

13. G.S. 18B-302(d)(l) establishes a defense to the sale of malt beverages and unfortified wine 
to anyone less than 21 years of age if such person produces a designated identification card "showing his age 
to be at least the required age for purchase and bearing a physical description of the person named on the card 
reasonably describing the purchaser;" 

14. On the evenings of June 25 and June 26, 1993, Respondent sold malt beverages and 
unfortified wine to Steven Brian Stowe who at the time of the sale and consumption of these alcoholic 
beverages was a person less than 21 years of age, in violation of G.S. 18B-302(a)(l) and G.S. 18B-1005(a)(l). 

15. At all times Steven Brian Stowe had a valid North Carolina driver's license to identify his 
age. He had been identified as a person of less than 21 years of age and yet, on six different occasions, Mr. 
Stowe made consecutive purchases from Respondent's employees, Ms. Joanna Sawyer and Ms. Donna 
Mitchell. The Respondent President, Mr. John Hopkins, was present on the premises and seated at the bar 
on the occasions of these purchases. Under these factual findings, the Respondent has violated 4 NCAC 2S 
.0233 by permitting Mr. Stowe to possess and consume alcoholic beverages on the licensed premises although 
Respondent's employee had determined that Mr. Stowe was less than 21 years of age. The knowledge of the 
Respondent's employee who determined that Mr. Stowe was less than 21 years of age must be, by law, 
imputed to the permittee. 



8:22 NORTH CAROLINA REGISTER February 15, 1994 2205 



CONTESTED CASE DECISIONS 



16. Mr. Droke purchased, possessed and consumed four malt beverages on the evening of July 
2, 1993 at a time when he was less than 21 years old. Purchases were made from Respondent's employees. 
The Respondent's President, Mr. John Hopkins, was present on the premises and seated at the bar on the 
occasions of these purchases. Under these factual findings, the Respondent has violated G.S. 18B-302(a)(l), 
G.S. 18B-302(b)(l), G.S. 18B-1005(a)(l) and 4 NCAC 2S .0233 by permitting Mr. Droke to purchase, 
possess and consume alcoholic beverages on the licensed premises because it is Respondent's duty to 
determine the correct legal age of the persons to whom the permittee serves alcoholic beverages. No evidence 
was offered by the Respondent as to whether or not Mr. Droke gained admission to the premises by the use 
of the false identification nor did Respondent dispute that the false identification did not resemble Mr. Droke. 

17. On July 2, 1993, Steven Ragan possessed and consumed a malt beverage on Respondent's 
premises. He had a very youthful appearance and was 18 years old. Under these factual findings, the 
Respondent has violated G.S. 18B-302(b)(l), G.S. 18B-1005(a)( 1 ) and 4 NCAC 2S .0233 by permitting Mr. 
Ragan to possess and consume alcoholic beverages on the licensed premises. Respondent's employees had 
the legal responsibility for determining Mr. Ragan's age and to prevent the underage consumption of malt 
beverages by this individual. 

18. On July 2, 1993, Erin Brandon, age 18, was on Respondent's premises and had in her 
possession an alcoholic beverage. Ms. Brandon was stamped on the underside of her wrist indicating she was 
less than the legal drinking age. Under these factual findings, the Respondent has violated G.S. 18B- 
302(a)(1), G.S. 18B-1005(a)(l) and 4 NCAC 2S .0233 by permitting Ms. Brandon to possess an alcoholic 
beverage on the licensed premises. Respondent's employee had determined that Ms. Brandon was less than 
21 years of age. The knowledge of the Respondent's employee who determined that Ms. Brandon was less 
than 21 years of age must be, by law, imputed to the permittee and Respondent's other employees. 

19. During the evening of July 2, 1993, Amy Yvette Atkinson purchased from Respondent's 
employees two malt beverages; she possessed and consumed these malt beverages. She gained entrance to 
the Respondent's premises through a false identification card issued by Respondent but with no scrutiny or 
supervision in the means by which she obtained this identification. She was engaged in conversation with Mr. 
Hopkins at the bar at the time that she purchased and consumed a malt beverage. Under these factual 
findings, the Respondent has violated G.S. 18B-302(a)(l), G.S. 18B-302fb)(l), G.S. 18B-1005(a)(l) and 4 
NCAC 2S .0233 by permitting Ms. Atkinson to purchase, possess and consume alcoholic beverages on the 
licensed premises under the lawful drinking age. It was Respondent's affirmative duty to ascertain Ms. 
Atkinson's correct age before selling and permitting her to consume alcoholic malt beverages. 

20. On July 2, 1993, Mary Jackson, age 20, consumed a portion of a malt beverage on 
Respondent's premises. Ms. Atkinson had gained entrance to the premises by falsely representing that she 
was over the age of 21. Under these factual findings, the Respondent has violated G.S. 18B-302(b)(l), G.S. 
18B-1005(a)(l) and 4 NCAC 2S .0233 by permitting Ms. Jackson to possess alcoholic beverages on the 
licensed premises at a time when she was less than 21 years of age. 

21. On the morning of June 27, 1993, Mr. Paquette, while participating in the "Wall Dance" 
contest had his genitals exposed by an unidentified female patron who pulled down his shorts. Respondent 
and his employees who witnessed this activity are responsible under G.S. 18B-1005(a)(4) to prevent and 
prohibit any conduct and/or entertainment by persons whose private parts are exposed. 4 NCAC 2S .216(a)(3) 
prohibits any person from displaying genitals. Under 4 NCAC 2S .0201 the permittee is under a burden to 
be responsible for all patrons. By sponsoring and sanctioning such entertainment on Respondent's premises. 
Respondent must be held accountable for the incident. Respondent expressly warns contestants not to expose 
themselves but when the exposure happens, the permittee cannot ignore the conduct. Once the exposure 
occurs during a contests that the permittee sanctions, the Respondent becomes liable for the patron's conduct. 
The patron, in effect, becomes the agent of the Respondent. 

22. On the evening of June 27, 1993, Mr. Paquette voluntarily exposed himself a second and third 
time in the presence of Respondent's employees and Respondent's President. Mr. McGuire and Mr. Brendell 
had actual knowledge of the first exposure and communicated this to Mr. Hopkins. At this point, they were 



2206 8:22 NORTH CAROLINA REGISTER February 15, 1994 



CONTESTED CASE DECISIONS 



put on notice of the potential for this activity to be repeated although they may not have foreseen the exact 
manner in which it could have been repeated. The knowledge of the employees will be imputed to the 
Respondent. (See Fay v. Board of Alcoholic Control , 30 N.C. App. 492, 227 S.E.2d 298, cert, denied, 291 
N.C. 175, 229 S.E.2d 698 (1976), Dove v. North Carolina Board of Alcoholic Control , 37 N.C. App. 605, 
608, 246 S.E.2d, 584 (1978). As a consequence, Respondent has violated G.S. 18B-1005(a)(4) and 4 NCAC 
2S .0216(a)(3) by allowing and permitting Mr. Paquette to display his genitals on the permittee's premises. 

23. On July 2, 1993, at approximately 11:30 p.m., Respondent's President, Mr. Hopkins, did 
consume alcoholic beverages on the licensed premises in violation of 4 NCAC 2S .0212(a)(3). This regulation 
prohibits the permittee from consuming alcoholic beverages. If the permittee consumes, he shall not perform 
any service of any nature while or after consuming alcoholic beverages, (emphasis added) Mr. Hopkins, on 
July 2, 1993, was talking to and communicating with his staff through radio transmitters and reviewing 
business papers on a clipboard. Mr. Hopkins, by consuming alcoholic beverages while performing services, 
is found in violation of 4 NCAC 2S .0212(a)(3). 

24. Respondent's establishment is placed in an awkward position of having to admit minors into 
an establishment that primarily serves alcoholic beverages to those who are 21 years of age and slightly older. 
Although Respondent has attempted to inform its employees as to the ABC laws and to devise an identification 
system by stamping a patron's wrist, the methods employed did not satisfactorily prohibit the underage 
purchase and consumption of alcoholic beverages on this licensed premises. 

25. Respondent has a policy to routinely admit young minors to his premises, some as young as 
16 years old. Respondent cannot refuse to accept responsibility and accountability for Mr. Paquette's unlawful 
genital exposure. By conducting such a contest, particularly where young minors are present and then to later 
try to distance himself from the patron's and contestant's unlawful actions, by asserting Respondent lacks 
sufficient knowledge of the incident, is to abrogate responsibility for an event the Respondent created. The 
patron's indecent exposure was not an isolated event but was made with the knowledge of Respondent's 
employees and in furtherance of Respondent's business purpose. 

26. Due to the inordinate number of underage drinking violations in this establishment on June 
26, 27 and July 2, 1993, and due to Respondent's past violations and due to the indecent exposure incident 
that occurred in a contest promoted by Respondent and in the presence of young minors, the undersigned finds 
that a penalty of $1,000.00 with a three year revocation of ABC permits with one year suspension after the 
completion of two years of active revocation (or a more severe sanction) is justified under the Findings of Fact 
and Conclusions of Law. 

Based upon the foregoing Stipulations, Findings of Fact and Conclusions of Law, the undersigned 
issues the following: 

RECOMMENDED DECISION 

The Chief Administrative Law Judge recommends to the Petitioner, ABC Commission, that all of 
Respondent's ABC permits, 29958A, On Premises Malt Beverage, and 29958C, Unfortified Wine, be revoked 
for a period of three years but that the last one year of the three year revocation by stayed upon the condition 
that Respondent not violate any of the ABC statutes or rules and that the Respondent pay a fine of $1 ,000.00. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 



8:22 NORTH CAROLINA REGISTER February 15, 1994 2207 



CONTESTED CASE DECISIONS 



opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to | 

furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina Alcoholic 
Beverage Control Commission. 

This the 24th day of January, 1994. 



Julian Mann, III 

Chief Administrative Law Judge 



2208 8:22 NORTH CAROLINA REGISTER February 15, 1994 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandator}: The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



2209 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1993 - March 1994) 



Pages 



Issue 



1 - 92 1 - April 

93 - 228 2 - April 

229 - 331 3 - May 

332 - 400 4 - May 

401 - 455 5 - June 

456 - 502 6 - June 

503 - 640 7 - July 

641 - 708 8 - July 

709 - 792 9 - August 

793 - 875 10 - August 

876 - 1006 11 - September 

1007 - 1 184 12 - September 

1185 - 1307 13 - October 

1308 - 1367 14 - October 

1368 - 1512 15 - November 

1513 - 1568 16 - November 

1569 - 1719 17 - December 

1720 - 1849 18 December 

1850 - 1941 19 - January 

1942 - 2031 20 - January 

2032 - 2118 21 February 

2119 - 2213 22 - February 



Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

Administration's Minimum Criteria, 5 

Auxiliary Services, 1724 

Low-Level Radioactive Waste Management Authority, 232 

State Employees Combined Campaign, 1008 

ADMLNISTRATIVE HEARLNGS 

Civil Rights Division, 370 
General. 366 
Hearings Division, 1480 
Rules Division, 367 

AGRICULTURE 

Aquaculture, 1212, 2126 

Markets, 2125, 2127 

N.C. State Fair, 506 

Plant Industry, 513, 1212, 2125. 2141 

Standards Division, 1212, 2124 

Veterinary Division. 515, 1212 



CONLMERCE 

Alcoholic Beverase Control Commission. 408. 71 



1310 



2210 



8:22 



NORTH CAROLINA REGISTER 



February 15, 1994 



CUMULATIVE INDEX 



Banking Commission, 408, 798, 1312 

Cemetery Commission, 810 

Credit Union Division, 1724 

Savings Institutions Division: Savings Institutions Commission, 461 

State Ports Authority, 811, 1570 

COMMUNITY COLLEGES 

Community Colleges, 1527 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 279, 571, 962, 1405, 1862 

Comprehensive Conservation and Management Plan, 882 

Departmental Rules, 465 

Environmental Health, 2067 

Environmental Management, 210, 556, 658, 797, 893, 1254, 1748, 1858, 2039 

Health Services, 283, 335, 425, 465, 572, 709, 762, 966, 1098, 1417, 1663, 1782, 1850 

Marine Fisheries, 28, 568, 1573 

Mining: Mineral Resources, 829 

NPDES Permit, 710 

Radiation Protection, 1662 

Soil and Water Conservation Commission, 214, 1322 

Vital Records, 1525 

Wildlife Resources Commission, 32, 663, 831, 965, 1255, 1409, 1613, 1723, 1773, 1957 

Wildlife Resources Commission Proclamation, 1851, 2123 

Zoological Park, 337 

FINAL DECISION LETTERS 

Voting Rights Act, 4, 407, 460, 795, 880, 1371, 1514, 1569, 1722, 1942, 2033, 2121 

GENERAL STATUTES 

Chapter 7 A, 1185 
Chapter 150B, 1187 

GOVERNOR/LT, GOVERNOR 

Executive Orders, 1, 93, 229, 332, 401, 456, 641, 793, 876, 1007, 1209, 1308, 1368, 1513, 1720, 
2032, 2119 

HUMAN RESOURCES 

Aging, Division of, 815, 1372 

Blind, Services for the, 884 

Deaf and Hard of Hearing, Services for the, 650 

Departmental Rules, 2143 

Facility Services, 94, 883, 1014, 1215, 1312, 1519, 1725, 2036 

Medical Assistance, 25, 414, 553, 712, 888, 1316, 1742, 1943 

Medical Care Commission, 644, 1312 

Mental Health, Developmental Disabilities and Substance Abuse Services, 7, 413, 516, 1086, 1217, 

1852 

Social Services Commission, 237, 733, 1091, 1376, 1743, 2037 

INSURANCE 

Actuarial Services, 555, 657, 1249, 1321, 1403 
Agent Services Division, 1399 
Engineering and Building Codes Division, 1248 
Financial Evaluation Division, 1093, 1317, 1946, 2145 
Life and Health Division, 1094, 1318, 1400, 1956 



8:22 NORTH CAROLINA REGISTER February 15, 1994 2211 



CUMULATIVE INDEX 



Medical Database Commission, 463, 737, 1956 
Property and Casualty Division, 1400, 2144 
Special Services Division, 1096 

JUSTICE 

Alarm Systems Licensing Board, 761 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Division, 241 

Departmental Rules, 1096 

Private Protective Services Board, 252, 890, 2151 

Sheriffs' Education and Training Standards Commission, 738 

LABOR 

OSHA, 97, 231, 278, 892, 1523, 1744, 2035, 2154 

LICENSING BOARDS 

Architecture, 43 

Certified Public Accountant Examiners, 1418 

Chiropractic Examiners, 1806 

Cosmetic Art Examiners, 969, 1526, 2071, 2162 

Dental Examiners, State Board of, 763, 1960, 2166 

Electrolysis Examiners, Board of, 841, 1457 

Foresters, Registration for, 674 

Geologists, Board of, 285, 2072 

Landscape Architects, 1256 

Medical Examiners, Board of, 591, 1458, 1685, 1965, 2167 

Mortuary Science, Board of, 45, 342, 971, 1461, 2170 

Nursing, Board of, 1463 

Nursing Home Administrators, 346 

Occupational Therapy, 1469 

Opticians, Board of, 1261 

Pharmacy, Board of, 47, 354, 1326 

Physical Therapy Examiners, 53, 767 

Plumbing, Heating and Fire Sprinkler Contractors, 360 

Practicing Psychologists, Board of, 844, 1807, 1880 

Professional Engineers and Land Surveyors, Board of, 2172 

Real Estate Appraisal Board, 1976 

Real Estate Commission, 53, 364, 1996 

Refrigeration Examiners, 1148, 1526 

Social Work, Certification Board for, 428, 1808 

Therapeutic Recreation Certification Board, 1328 

LIST OF RULES CODIFIED 

List of Rules Codified, 61, 290, 432, 593, 769, 845, 1264, 1535, 1687, 1881, 2074 

PUBLIC EDUCATION 

Elementary and Secondary Education, 427, 470, 1873, 2068 

SECRETARY OF STATE 

Land Records Management Division, 1792 

STATE PERSONNEL 

Office of State Personnel. 286, 972, 1262, 1472 



2212 8:22 NORTH CAROLINA REGISTER February 15, 1994 



CUMULATIVE INDEX 



STATE TREASURER 

Local Government Commission, 1795 
Retirement Systems, 337, 1146 

TAX REVIEW BOARD 

Orders of Tax Review, 503, 1516 

TRANSPORTATION 

Highways, Division of, 669, 836, 2158 
Motor Vehicles, Division of, 1145, 1875 



8:22 NORTH CAROLINA REGISTER February 15, 1994 2213 



NORTH CAROLINA ADMINISTRATIVE CODE 



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